T 


^J.I 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


A 


1^»1Wh»,M..:„  , 


A    TREATISE 


ON  THE 


LAW    OF    EVIDENCE. 


BY 

SIMON    GREENLEAF,    LL.D., 

EMERITUS  PROFESSOR   OF  LAW  IN   HARVARD    UNIVERSITY. 


Quorstun  enim  sacrae  leges  inventse  et  sancitae  fuere,  nisi  ut  ex  ipsarum  justitia  unicuique 
jus  suum  tribuatur  ?  —  Muscardus  ex  Ulpian. 


VOLUME     L 

thirteenth    EDITION,    CAREFULLY    REVISED,    WITH    LARGE    ADDITIONS, 

BT 

JOHN    WILDER    MAY, 

AUTHOR    OF    "the    LAW    OF    INSURANCE,"    ETC. 


BOSTON: 
LITTLE,    BROWN,    AND    COMPANY. 

1876. 


Entered  according  to  Act  of  Congress,  in  the  year  1858, 

By  James  Greenleaf, 

in  the  Clerk's  Office  of  the  District  Court  of  the  District  of  Massachusetts. 

Entered  according  to  Act  of  Congress,  in  the  year  1863, 

By  James  Greenleaf, 

in  the  Clerk's  Office  of  the  District  Court  of  the  District  of  Massachusetts. 

Entered  according  to  Act  of  Congress,  in  the  year  1866, 

By  Mrs.  James  Greenleaf, 

in  the  Clerk's  Office  of  the  District  Court  of  the  District  of  Massachusetts. 

Entered  according  to  Act  of  Congress,  in  the  year  1876, 

By  C.  K.  Fuller  and  C.  A.  Croswell, 

in  the  Office  of  the  Librarian  of  Congress,  at  Washington. 

T 


Cambridge : 
Press  of  John  Wilson  and  Son. 


cf 


TO    THE    HONORABLE 


JOSEPH    STORY,    LL.D., 


ONE    OF    THE    JUSTICES    OF    THE    SUPREME    COURT    OF    THE    UNITED    STATES, 
AND    DANE    PROFESSOR    OF    LAW    IN    HARVARD     UNIVERSITY. 


Sir,  —  In  dedicating  this  work  to  you,  I  perform  an  office 
both  justly  due  to  yourself  and  dehghtf ul  to  me,  —  that  of 
adding  the  evidence  of  a  private  and  confidential  witness  to 
the  abundant  public  testimonials  of  your  worth.  For  more 
than  thirty  years  the  jurisprudence  of  our  country  has  been 
illustrated  by  your  professional  and  juridical  labors ;  with 
what  success,  it  is  now  superfluous  to  speak.  Other  Jurists 
have  attained  distinction  in  separate  departments  of  the 
law ;  it  has  been  reserved  for  yourself,  with  singular  felic- 
ity, to  cultivate  and  administer  them  all.  Looking  back 
to  the  unsettled  state  of  the  law  of  our  national  institutions, 
at  the  period  of  your  accession  to  the  bench  of  the  Supreme 
Court  of  the  United  States,  and  considering  the  unlimited 
variety  of  subjects  within  the  cognizance  of  the  Federal 
tribunals,  I  do  but  express  the  consenting  opinions  of  your 
contemporaries,  in  congratulating  our  country  that  your  life 


iv  DEDICATION. 

and  vigor  liave  been  spared  until  the  fabric  of  her  jurispru- 
dence has  been  advanced  to  its  present  state  of  lofty  emi- 
nence, attractive  beauty,  and  enduring  strength. 

But  many  will  regard  the  foundation  of  the  present  Law 
School  in  Harvard  University  as  the  crowning  benefit, 
which,  througli  3'our  instrumentality,  has  been  conferred 
on  our  profession  and  country.  Of  the  multitude  of  young 
men,  who  will  have  drunk  at  this  fountain  of  jurisprudence, 
many  will  administer  the  law,  in  every  portion  of  this  wide- 
spread Republic,  in  the  true  spirit  of  the  doctrines  here 
inculcated  ;  and  succeeding  throngs  of  ingenuous  youth  will, 
I  trust,  be  here  imbued  with  the  same  spirit,  as  long  as  our 
""overnment  shall  remain  a  o-overnment  of  law.  Your  anx- 
iety  to  perpetuate  the  benefits  of  this  Institution,  and  the 
variety,  extent,  and  untiring  constancy  of  yoiu*  labors  in 
this  cause,  as  well  as  the  cheerful  patience  with  which  they 
have  been  borne,  are  peculiarly  known  to  myself ;  while, 
at  the  same  time,  I  have  witnessed  and  been  instructed  by 
the  high  moral  character,  the  widely-expanded  views,  and  the 
learned  and  just  expositions  of  the  law,  which  have  alike 
distinguished  your  private  Lectures  and  your  published 
Commentaries.  With  imaffected  sincerity  I  may  be  per- 
mitted to  acknowledge,  that  Avhile  my  path  has  been 
illumined  for  many  years  by  your  personal  friendship  and 
animating  example,  to  have  been  selected  as  your  associate 
in  tlie  arduous  and  responsible  labors  of  this  Institution, 
I  shall  ever  regard  as  the  peculiar  honor  and  happiness 
of  my  professional  life.  Beate  vixisse  videar,  quia  cum 
Scipione  vixerlm. 


DEDICATION. 


Long  may  you  continue  to  reap  the  rich  reward  of  labors 
so  vast,  so  incessant,  and  of  such  surpassing  value,  in  the 
heartfelt  gratitude  of  our  whole  country,  and  in  the  pros- 
perity of  her  institutions,  which  you  have  done  so  much  to 
establish  and  adorn. 

I  am,  wath  the  highest  respect. 
Your  obliged  friend, 

SIMON   GREENLEAF 

Cambridge,  Massachusetts, 
February  23,  1842. 


ADVERTISEMENT  TO   THE   FIRST   EDITION. 


The  profession  being  already  furnished  with  the  excel- 
lent treatises  of  Mr.  Starkie  and  Mr.  Phillips  on  Evidence, 
with  large  bodies  of  notes,  referring  to  American  decisions, 
perhaps  some  apology  may  be  deemed  necessary  for  obtrud- 
ing on  their  notice  another  work,  on  the  same  subject.     But 
the  want  of  a  proper  text-book,  for  the  use  of  the  students 
under  my  instruction,  urged  me  to  prepare  something  to 
supply  this  deficiency  ;  and,  having  embarked  in  the  under- 
taking, I  was  naturally  led  to  the  endeavor  to  render  the 
work  acceptable  to  the  profession,  as  well  as  useful  to  the 
student.     I   would   not   herein   be   thought  to    disparage 
the   invaluable   works   just   mentioned ;   which,   for  their 
accm-acy  of  learning,  elegance,  and  sound  philosophy,  are 
so  highly  and  universally  esteemed  by  the  American  Bar. 
But  many  of  the  topics  they  contain  were  never  applicable 
to  this  country ;  some  others  are  now  obsolete  ;  and  the 
body  of  notes  has  become  so  large,  as  almost  to  overwhelm 
the  text,  thus  greatly  embarrassing  the  student,  increasing 
the  labors  of  the  instructor,  and  rendering  it  indispensable 
that  the  work  should  be  rewritten,  with  exclusive  reference 
to  our  own  jurisprudence.    I  have  endeavored  to  state  those 
doctrines  and  rules  of   the   Law   of  Evidence  which  are 


Viii  ADVERTISEMENT   TO   THE   FIEST   EDITION. 

common  to  all  the  United  States  ;  omitting  what  is  purely 
local  law,  and  citing  only  such  cases  as  seemed  necessary 
to  illustrate  and  support  the  text.  Doubtless  a  happier 
selection  of  these  might  be  made,  and  the  work  might  have 
been  much  better  executed  by  another  hand ;  for  now  it  is 
finished,  I  find  it  but  an  approximation  towards  what  was 
originally  desired.  But  in  the  hope,  that  it  still  may  be 
found  not  useless,  as  the  germ  of  a  better  treatise,  it  is 
submitted  to  the  candor  of  a  Hberal  profession. 

Cambridge,  Massachusetts, 
February  23,  1S12. 


ADVERTISEMENT   TO   THE   THIRTEENTH   EDITION. 


This  thirteenth  edition  will  be  found  to  contain  aU  the 
matter  of  the  preceding  editions,  with  the  addition,  to  the 
first  volume,  of  about  nine  hundred  cases,  selected  from 
the  multitude  of  American  and  English  decisions  reported 
since  the  last  edition,  as  new  or  striking  illustrations  of 
established  principles,  or  as  containing  new  discussions  of 
questions  still  unsettled.  The  text  has  been  restored  to 
the  condition  in  which  it  was  left  by  the  author,  such  addi- 
tions as  had  been  made  thereto  by  former  editors  having 
been  thrown  into  the  notes,  either  in  form  or  substance ; 
the  summaries  prefixed  to  the  several  chapters  omitted, 
and  catchwords  to  the  sections  substituted  therefor.  In 
this  way,  the  size  of  the  volume  has  been  but  slightly 
increased,  notwithstanding  the  large  additions.  The  notes 
of  former  editors  have  been  for  the  most  part  retained, 
though  in  some  cases  they  have  been  transferred,  and,  in  a 
few,  entirely  omitted,  or  incorporated  substantially  into  new 
notes.  The  notes  of  the  several  editors  are  not  distinguished 
from  each  other,  save  that  a  few  made  by  the  late  lamented 
Mr.  Chief  Justice  Redfield,  containing  his  personal  views, 
have  been  indicated  by  the  letter  R.,  or  in  some  other  way 
as  emanating  from  him.  The  editor  has  freely  availed  him- 
self of  such  material  contained  in  the  last  edition  of  Taylor's 
Evidence  as  seemed  to  him  new  or  useful.     This,  however. 


X  ADYEETISEMEXT   TO   THE   THIRTEENTH  EDITION. 

consists  chiefly  of  the  more  recent  cases  upon  the  different 
points  in  the  law  of  evidence  decided  in  the  British  courts. 
Upon  examination,  it  was  found  that  much  of  that  work, 
especially  of  the  second  volume,  is  taken  up  by  the  divers 
new  British  statutes  on  evidence,  the  cases  decided  there- 
upon, and  suggestions  for  amending  the  Law  of  Evidence, 
of  special  interest,  no  doubt,  to  the  British,  but  of  no  prac- 
tical interest  to  the  American,  lawyer ;  while  no  inconsider- 
able portion  of  the  whole  work  is  devoted  to  pleading  and 
to  other  titles,  in  no  way  pertaining  to  evidence,  and  not 
presumably  to  be  found  in  a  treatise  upon  that  subject. 
Except  in  these  particulars,  Taylor  is  (as  is  indeed  apparent 
from  the  very  candid  preface  itself)  substantially  Greenleaf, 
one  section  of  the  latter,  with  the  notes,  being  extended 
into  two  or  more  sections  of  the  text  of  the  former,  with 
not  infrequent  substitutions  of  English  cases  for  the  Ameri- 
can authorities  cited  by  Professor  Greenleaf.  In  fact,  no 
higher  compliment  has  been  paid  to  the  work  of  Professor 
Greenleaf  than  its  presentation,  substantially  in  form  and 
actually  in  substance,  by  Mr.  Taylor  to  the  British  legal 
public,  with  such  changes  and  additions  only  as  adapted  it 
to  their  use. 

The  enlargement  of  the  Index,  and  frequent  cross-refer- 
ences, have  greatly  increased  the  value  of  this  edition  ; 
and  it  is  confidently  believed  that  the  work  will  still  be 
found,  as  heretofore,  the  most  satisfactory  guide  extant  to 
the  learning  of  the  books  upon  tliis  title  of  the  law. 

J.  W.  M. 


NOTE. 


Some  of  the  citations  from  Starkie's  Reports,  in  the  earlier  part  of  this 
work,  are  made  from  the  Exeter  edition  of  1823,  and  the  residue  from  the 
London  edition  of  1817-20.  The  editions  of  the  principal  elementary  writers 
cited,  where  they  are  not  otherwise  expressed,  are  the  following:  — 

Alciati,  Opera  Omnia.     Basileag.     1582.     4  torn.  fol. 

Best  on  Presumptions.     Lond.     ISW. 

Best  Principles  of  Evidence.     Lond.     1849. 

Canciani,  Leges  Barbarorum  Antiquse.     Venetiis.     1781-1785.     5  vol.  fol. 

Carpzovii,  Practicse  Rer.  Crim.     Francof.  ad  Msenum.     1758.     3  vol.  fol. 

Corpus  Juris  Glossatum.     Lugduni.     1627.     6  tom.  fol. 

Danty,  Traits  de  la  Preuve.     Paris.     1697.     4to. 

Everhardi  Concilia.  Ant.     1643.     fol. 

Farinacii  Opera.     Francof.  ad  Masnum.     1618-1686.     9  vol.  fol. 

Glassford  on  Evidence.     Edinb.     1820. 

Gresley  on  Evidence.     Philad.     1837. 

Joy  on  Confessions.     Dublin.     1842. 

Mascardus  de  Probationibus.     Francof.  ad  Maenum.     1684.     4  vol.  fol. 

Mathews  on  Presumptive  Evidence.     Xew  York.     1830. 

Menochius  de  Presumptionibus.     Geuevte.     1670.     2  tom.  fol. 

Mittermaier,  Traite  de  la  Preuve  en  Matiere  Criminelle.     Paris.     1848. 

Peake's  Evidence,  by  Xorris.     Philad.     1824. 

Phillips  and  Amos  on  Evidence.     Lond.     1838.     8th  ed. 

Phillips  on  Evidence.     Lond.     1843.     8th  ed. 

Pothier  on  Obligations,  by  Evans.     Pliilad.     1826. 

Russell  on  Crimes.     3d  Amer.  ed. 

Starkie  on  Evidence.     6th  Amer.  ed.     2  vols. 

Stephen  on  Pleading.     Philad.     1824. 

Strykiorum,  Opera.     Francof.  ad  Maenum.     1743-1753.     15  vol.  fol. 

Tait  on  Evidence.     Edinb.     1834. 

Tidd's  Practice.     9th  Lond.  ed. 

Wigram  on  the  Interpretation  of  Wills.     3d  Lond.  ed.     1840. 

Wills  on  Circumstantial  Evidence.     Lond.     1838. 


CONTENTS. 


PART    I. 

OF  THE  NATURE   AND  PRINCIPLES   OF  EVIDENCE. 

CHAPTER  I. 

Section 

Preliminary  Observations 1-3 

CHAPTER  11. 

Of  Things  Judicially  taken  Notice  of  without  Proof     .     .        4-6 

CHAPTER  ni. 
Of  the  Grounds  of  Belief 7-13 

CHAPTER  IV. 
Of  Presumptive  Evidence 14-48 


PART    11. 

OF    THE    RULES    WHICH   GOVERN    THE   PRODUCTION   OF   TES- 
TIMONY. 

CHAPTER  I. 
Of  the  Relevancy  of  Evidence 49-55 

CHAPTER   n. 
Oi   the  Substance  of  the  Issue 56-73 

CHAPTER   III. 
Of  the  Burden  of  Proof 74-81  c 


XIV  CONTENTS. 

CHAPTER   IV. 

Section 
Of  the  Best  Evidence 82-97 

CHAPTER   V. 
Of  Hearsat 98-126 

CHAPTER   VI. 
Of  Matters  of  Public  and  General  Interest 127-140 

CHAPTER  VII. 
Of  Ancient  Possessions 141-146 

CHAPTER   VIII. 
Of  Declarations  against  Interest 147-155 

CHAPTER  IX. 
Of  Dying  Declarations 156-1G2 

CHAPTER   X. 

Of  the  Testimony  of  Witnesses  subsequently  dead,  absent, 

OR  disqualified 163-1G8 

CHAPTER   XI. 
Of  Admissions 169-212 

CHAPTER  XII. 
Of  Confessions 213-235 

CHAPTER  XIII. 
Of  Evidence  excluded  by  Public  Policy 236-254 

CHAPTER   XIV. 

Of  the  Xumhf.r  of  Witnesses,  and  the  Nature  and  Quan- 
tity of  Proof  required  in  Particular  Cases 255-274 

CFIAPTER   XV. 

Of  the   Admissibility  of    Parol   or   Verbal   Evidence   to 
affect  that  which  is  Written 275-305 


CONTENTS.  XV 

PART    III. 

OF  THE  INSTRUMENTS   OF   EVIDENCE. 

CHAPTER   I. 

Section 
Of  "Witnesses,  and  the  Means  of  procuring  their  Attend- 
ance          306-325 

CHAPTER   II. 
Of  the  Competency  of  Witnesses 326-430 

CHAPTER    III. 
Of  the  Examination  of  Witnesses 431-469 

CHAPTER  IV. 
Of  Public  Documents 470-498 

CHAPTER  V. 
Of  Eecords  and  Judicial  Writings 499-556 

CHAPTER  VI. 
Of  Private  Writings 557-584 


INDEX   TO   CASES   CITED. 


A. 

Section 

Abbey  v.  Lill  440 

Abbot  V.  Inhabitants  of  Heiinon    197 

V.  jNIassie  291 

V.  Plumbe  569,  572 

Abbott  V.  :\Iitchell  385 

Abby  V.  Goodrich  428 

Abeel  v.  RadcM  268 

Abercrombie  v.  Allen  197 

Abney  v.  Kingsland  51  a,  109 

Abrahams  v.  Bunn  414,  422 

Acero  et  al.  v.  Petroni  435 

Acker  v.  Ledyard  564 

Ackroyd  &  AVarburton's  case  230 

Adampthwaite  v.  Synge  509 

Adams  v.  Balch  538 

V.  Barnes  22,  531,  536 

V.  Betz  502,  509 

V.  Broiighton  533 

V.  CouUard  116,  565 

V.  Cuddy  397 

V.  Davidson  190 

V.  Davis  416 

V.  Field  576,  581 

V.  French  109 

V.  Frye  568 

V.  Gardiner  420 

V.  Kerr  572,  575 

V.  Lloyd  451 

V.  McMiUon        268,  269,  551 

V.  Pearson  534 

V.  People  440 

V.  Power  73 

V.  Sanders  212 

V.  Stanyan  145,  570 

V.  AV^orldley  275 

Addams  v.  Seitzinger  122 

Addington  v.  Magan  66 

Addis  V.  Van  Buskirk  66 

Adler  v.  Friedman  803 

Aflalo  V.  Fom-drinier  356 

Agawam  Bank  v.  Sears  564 


Section 
Agriculturist  Co.  v.  Fitzgerald       568 

Aiken  v.  Kilburne  237 

Aitcheson  v.  Maddock  80 

Aitken,  ex  parte  238 

Alban  v.  Pritchett  185,  341 

Alcock  V.  Cooke  239 

V.  Whatmore  6 

Alden  v.  Dewey  852 
Alderson  v.  Clay          42,  97,  197,  198 

Aldrich  v.  Kinney  548 

Aldworth's  case  502 

Alexander  v.  Gibson  643 

V.  Harris  58 

V.  Moore  305 

Alger  V.  Andrews  190 

Alivon  V.  Furnival  546 

Alkman  v.  Cummings  301 

Allan  V.  Comstock  292 

AUcott  V.  Strong  112,  177 

Allegheny  v.  Nelson  5,  20 

Allegheny  Ins.    Co.   v.  Hanlon     93, 

436 

Allen  V.  Allen  301 

V.  Bennett  268 

V.  Butler  197 

V.  Denstone  113 

V.  Duncan  108 

V.  Furbish  281,  284 

V.  Harrison  239  a 

V.  Hawks  892,  420,  430 

V.  Kingsbury  293 

V.  McKeen  197 

V.  Sapvard  24 

V.  The  Portland  Stage  Co.    125 

V.  Watson  489 

AUington  v.  Bearcroft  892 

Allmore  v.  jNIills  505 

Almgren  v.  Dutilh  282 

Alna  V.  Plunmier  264 

Abler  v.  George  172,  178,  305 

Alston  V.  Taylor  120 

Alvis  V.  Morrison  86 


XVIU 


IKDEX  TO   CASES   CITED. 


Alvord  V.  Baker  38 

Amey  v.  Lonj^                  2iQ,  309,  558 

Amherst  Bank  i'.  Root  572 

Amick  V.  Oyler  535 

Amos  V.  Hughes  74 

Anderson  r.  Brock  333,427 

V.  Caldwell  533 

V.  Hamilton  251 

V.  Long  54,  55 

V.  Parker  104 

r.  Robson  658 

V.  Root  563 

V.  Samiderson  185 

V.  AVeston  40, 121 

Andrews  v.  Andrews  319 

V.  Beeker  173 

V.  Brown  534 

V.  Fryes  451 

V.  Ohio  &  Miss.  R.  R. 

Co.  239 

V.  Palmer  168 

V.  Solomon  239 

V.  Vanduzer  55 

Androscoggin  Bank  v.  KimbaU     38  a 

Anglesea  i\  Hill  140 

Angus  V.  Smith  462 

Ankerstein  v.  Clark  69 

Annandale   (Marchioness   of)  v. 

Harris  23 

Annesley  v.  D.  of  Anglesea  37,  244, 

469 

Anon.  V.  ]\Ioore  55 

Anscombe  v.  Shore  137,  405 

Anthony  r.  The  State  156 

Apollou  (The)  6 

Apothecaries  Co.  v.  Bentley  79 

Appleton  V.  Boyd            172,  330,  452 

V.  Lord  Braybrook  514 

Arbor  i>.  Fussell  38  a 

Arbouin  v.  Anderson  81  a 

Archer  v.  Knglish  205 

t'.  Walker  205 

Arding  v.  Flower  316,  317 

Armory  v.  Delamirie  34,  37 

Armstrong  v.  Hewitt  485 

Arnfield  u.  Bates  60 

Arnold  V.  Arnold              369,  528,  531 

V.  Bisliop   of    Bath  and 

Wells  484 

V.  Cessna  281 

r.  Jones  305,  568 

V.  Redfern  516 

r.  Rivoult  69 

V.  Tourtelot  498 

Am'son  i;.  Harmstead  568 

Arthur  r.  Roberts  279 

Anindell  c.  Arundell  554 

1-.  White  513 

Ashland  i'.  ^larlborough  440 


Ashley  v.  Ashley  86 

V.  Wolcott  64 

Ashmore  v.  Hardy  97,  204 

Ashton  V.  Parker  361 

Ashton's  case  156,  451 

Ashworth  v.  Kittridge  497 

Aslin  V.  Parkin  535 

Aston  V.  Perkes  81 

Astor  V.  Union  Ins.  Co.  280 

Atalanta  (The)  31 

Atcheson  v,  Everitt         328,  371,  374 
Atherford  i'.  Beard  475 

Atkins  V.  Hatton  485 

V.  Sanger  et  al.  174 

V.  Tredgold  174,  176 

Atkinson  v.  Cummins  290 

Atlantic  Ins.  Co.  v.  Conrad  332 

Atlantic  Mut.  Ins.  Co.   v.  Fitz- 

patrick  323 

Att'y-Gen.  v.  Boston  293 

V.  Bowman  54,  55 

V.  Briant  250 

V.  Bulpit  432 

V.  Clapham  280 

V.  Davison  554 

V.  Drummond  295 

V.  Glasgow  College       295 
V.  Hitchcock        433,  449, 
455,  461 
V.  Jeffreys  60 

V.  Parnther  42,  81 

V.  Pearson  295 

V.  Proprietors     ]\Ieet- 

ing-house,  &c.         46 

V.  Shore  295 

V.  Theakstone       479,  492 

Attwoodv.  Small  171 

r.  Welton  369,  370,  450 

Aubert  v.  Walsh  38 

Auditor  v.  Brown  480 

Audlev's  (Lord)  case  343 

Augusta  r.  Windsor         115,116,  117 

Augusta  (Bank  of)  v.  Earle  5,  43 

Austin  V.  Austin  20 

V.  Bostwick  112 

V.  Cliambers  171 

V.  Runisey  572 

V.  Sawyer  271 

V.  State  445 

V.  Thompson  563 

V.  Vesey  237 

V.  Willes  3<4 

Australasia  (Bank  of)  r.  Xias        546 

Autaugu  County  v.  Davis  108 

Avery'r.  Pixley  273 

V.  Stewart  288 

Aveson  v.  Kinnard        102,  156,  254, 

337 
Ayers  v.  Hewitt  569 


INDEX   TO   CASES   CITED. 


XIX 


B. 


Brick- 


Babb  V.  Clemson 
Backenstass  v.  Stabler 
Backhouse  v.  Midclleton 
Bacou  V.  Charlton 
V.  Chesney 
V.  Williams 
Badger  v.  Titcomb 
Bagot  V.  Williams 
Bailey  v.  Bailey 
V.  Haines 
V.  Hyde 
V.  Lmnpkin 
V.  ]\IcMeckle 
V.  Musgrave 
V.  Taylor 
V.  Woods 
Bailiffs  of  TeAvksbury  v 

nell 
Baillie  v.  Hole 

V.  Jackson 
Bain  v.  ISIason 

V.  Whitehaven,  &c. 
Bainbridge  v.  Wade 
Baird  v.  Cochran 
V.  Fortune 
V.  Gillett 
Baker  v.  Arnold 
V.  Bradley 
V.  Blunt 
V.  Dening 
V.  Dewey 
V.  Haines 
V.  Hunt 
V.  Milburn 
V.  Rand 
V.  Ray 
V.  Tyrwhitt 
Balbie  v.  Donaldson 
Balcetti  v.  Serani 
Balcombe  v.  Xorthup 
Baldney  v.  Ritchie 
Bald\Yin  V.  Carter 
V.  Dixon 
V.  Hale 
Balentine  v.  ^Vhite 
Balfour  v.  Chew 
Ballard  v.  Xoaks 

V.  Walker 
Balls  V.  Westwood 
Balston  v.  Benstead 
Baltimore  v.  State 
Bamfield  v.  Massey 
Banbury  Peerage  case 
Bank  v.  Steward 
Bank  of  Australasia  v.  ISTias 
Hindustan  v.  Alison 


180,  5GS 
294 
552 

102,  205 

187 


581 

532 

532 

392 

584 

55 

386 

84 

73 

564 

164 


58 
392,  430 
485 
493 
49,  584 
289, 297 
452 
287 
52 
245 
380 
574 
272 
26 
581 
38  a 
121 
532 
37 
392,  428 
575 
52 
40 
560 
287 
392,  398 
548 
334 
505 
357 
304 
25 
17 
5 

54 

28,  81 

114 

546 

90 


V. 

Baring  v. 

V. 

Barker  v. 


484, 


334, 


Middlebm-y  r.  Rutland     440 


Bank  of  U.  S.  v.  Dandridge 
AVoodstock  V.  Clark 
Banks  v.  Farquharson 

V.  Skain 
Barada  v.  Caundelet 
Barb  v.  Fish 
Barbat  v.  Allen 
Barber  v.  Gingell 
V.  Goddard 
I'.  Holmes 
Watts 
Clarke 
Reeder 
Coleman 
V.  Dixie 
V.  Haskell 
V.  Macrae 
V.  Ray 
Barlow  v.  Dupuy 
V.  Vowell 
Barnard  v.  Darling 
Barnes  v.  Allen 

V.  Camack 
V.  Harris 
V.  Lucas 
V.  IVIawson 
V.  Trompowsky 
Baron  de  Bode's  case 
Barough  v.  White 
Barr  v.  Gratz 
Barrett  v.  Allen 
V.  Buxton 
V.  Gore 
V.  Rogers 
V.  Thorndike 
V.  Union  Mut. 
Co. 
Barretto  v.  Snowden 
Barrick  v.  Austin 
Barrington  v.  Bank  of  Washing- 
ton 
Barronet's  case 
Barrow  v.  Humphreys 
Barrs  v.  Jackson 
Bariy  v.  Bebbington 
V.  Ransom 
V.  Ryan 
Barstow's  case 
Barthelemy  v.  The  People 
Bartholomew  v.  Stevens 
Bartlett  v.  Decreet 
V.  Delpratt 
V.  Emerson 
V.  Pickersgill 
V.  Smith 
V.  Wyman 
Bas  V.  Steele 
Bass  V.  Clive 
Bassett  v.  Marshall 


37,  116,  147, 
167, 


238,  239, 
137, 


171, 
142,  144, 


356, 


265, 
Fire  Ins. 


40 
lUS 
572 
422 
331 
533 
334 
200 
329 
493 
505 
113 
342 
440 
340 
117 
416 
149 
510 
418 
302 
108 
337 
241 
207 
139 
572 
109 
191 
539 
288 
284 
547 
305 
568 


150, 


100, 
109, 


107 


281 
391 
174 

564 
18 
319 
550 
153 
281 
569 
218 
108 
561 
101 
180 
145 
363 
49 
281 
559 
196 
86 


XX 


INDEX  TO   CASES    CITED. 


Basset  t  v.  Porter 

80 

Beavan  v.  McDonnell 

53 

Batchelder  v.  Nutting 

558 

Beaver  v.  Lane 

69 

V.  Sanborn 

118 

V.  Taylor 

108 

Bate  V.  Hill 

54,  458 

Beebe  v.  Parker 

130, 

139 

r.  Kinsey 

241,  562 

Beckley  v.  Freeman 

392, 

4:50 

V.  llussell 

356,  358 

Beckrow's  case 

5(J8 

Bateman  v.  Bailey 

108,  180 

Beckwith  v.  Benner 

245 

Bates  v.  Barber 

461 

V.  Sydebotham 

440 

V.  X.  Y,  Ins.  Co. 

173 

Becquet  v.  IMcCarthy 

546 

V.  Ryland 

423 

Bedell  v.  Russell 

70 

V.  Thompson 

532 

Beech's  case 

65 

Bateson  v.  Hartsink 

246 

Beeching  v.  Gower 

421 

Bathews  r.  Galindo 

207,  339 

Beidelman  v.  Foulk 

397 

Battin  c.  Bigelow 

41 

Beitz  V.  Fuller 

112 

174 

Battles  V.  Batchelder 

110 

Belden  v.  Lamb 

51a 

V.  Holley 

46,  84 

V.  Seymour 

26 

Batturs  v.  Sellers 

199 

Bell  V.  Ansley 

180 

Bauerman  v.  Radenius 

172 

V.  Bruen 

284 

Baxter  v.  Graham 

398 

V.  Chaji:or 

571 

r.  Rodman 

422 

V.  Firemen's  Ins.  Co. 

288 

Bay  I'.  Gunn 

400 

V.  Hull  Railw.  Co. 

430 

Bayard  v.  ^lalcolm 

275 

V.  Martin 

287 

Bay  ley  v.  M'Mickle 

37 

V.  Morrison               112, 

174 

323 

V.  Osborne 

427 

V.  Smith 

395 

V.  Taylor 

564 

Bellamy  v.  Cains 

347 

V.  Wylie 

516 

Bellew  V.  Russell 

347 

Baylies  v.  FettA-pIace 

58 

Bellinger  v.  The  People 

451 

463 

Baylis  v.  The  Att'y-Gen. 

291 

Bellinger's  case 

224 

Bayne  v.  Stone 

89 

Bellows  V.  lugraham 

548 

Baynos  v.  Forrest 

70 

Beltzhoover  v.  Blackstock 

240 

Beach  v.  Mills 

118 

Benaway  v.  Conyne 

432 

V.  Packard 

26 

Bend  ;;.  Georgia  Ins.  Co. 

292 

V.  Rar.  &  Del.  R.  R 

Co.    284  a 

Bender  v.  Fromberg 

180 

Beachcroft  v.  Beachcroft 

288 

Benham  v.  Dunbar 

52 

Beacon  Life  &  Fii-e  Ass. 

Co.  V. 

Benjamin  v.  Hathaway 

452 

Gibb 

292 

V.  Porteus 

115 

416 

Beal  c.  Nichols 

445 

V.  Sinclair 

305 

Beale  v.  Commonwealth 

19 

Benner  v.  Frey 

73 

V.  Thompson 

322 

Bennet  v.  "Watson 

313 

319 

Bealev  v-  Shaw 

17 

Bennett  v.  Francis 

205 

Bealff.  Beck 

187 

V.  Holmes 

532 

Beaman  v.  Russell 

564 

V.  Hyde 

55 

Beamon  v.  Ellice 

432 

V.  Lebhart 

38 

Bean  v.  Qiiimby 

241 

V.  Morley 

548 

Bearce  v.  Jackson 

24 

V.  Robinson 

167 

Beard  v.  Hale 

455 

V.  Runyou 

31 

r.  Tall)ot 

145 

V.  State 

369 

Beardsley  v.  Richardson 

108 

V.  Stow 

282 

Bearss  v.  Copley 

462 

r.  Tennessee 

6 

Beasley  v.  Bradlev 

358 

V.  AVatson 

319 

V.  Magrath 

179 

r.  "NVomack 

49 

r.  Watson 

281 

Bennett's  case 

228 

Beatson  v.  Skene 

251 

Benson  v.  McFadden 

440 

Beauchamp  v.  Parry 

190 

V.  Olive 

41 

Beaufort  v.  Crawshay 

49 

Bent  V.  Baker                   167 

390 

418 

r.  Swan 

45 

Bentley  v.  Cooke              334 

339 

343 

Beaumont  v.  Fell 

291 

V.  HoUinback 

118 

V.  Field 

277 

Benton  v.  Burgot 

548 

i;.  Mountain 

481 

Bentzing  v.  Scott 

73 

INDEX   TO   CASES   CITED. 


XXI 


Berd  v.  Lovelace  237 
Bergen  v.  Bennett  46 
V.  The  People  217 
Berkley  Peerage  case      104,  125,  128, 
131, 133, 134 
Bermon  v.  AVoodbridge  201 
Bernasconi  v.  Fai'ebrother  181 
Berrington  d.  Dormer  v.  Fortes- 
cue  359,  360 
Berry  v.  Banner  139 
Berryman  v.  Wise        58,  83,  92,  195 
Bertiion  v.  Loughman  441 
Bertie  v.  Beaumont  142,  154 
Berwick  v.  Horsfall  277 
Bests  u.  Jones  427 
Betham  v.  Benson  113 
Betts  V.  Badger  571 
V.  Bagley  548 
V.  Star  537 
Betty  V.  Nail  104 
Bevan  v.  Waters  241,  245 
V.  Williams  195 
Beveridge  v.  Minster  254,  337 
Beverley's  case  189 
Beverly  v.  Beverly  41 
V.  Craveu  144 
Bibb  V.  Thomas  273 
Bicknell  v.  Hill  498 
Biddis  V.  James                480,  489,  505 
Biddulph  V.  Ather  139 
Bigelow  V.  CoUamore  277 
V.  Winsor  532 
Biglow  V.  Sanders  118 
Biggs  V.  Lawrence  284 
Bitbie  v.  Lumley  212 
Billings  V.  Billings  281 
Bingham  v.  Cabot  491 
V.  Dickey  65 
V.  Rogers  348 
V.  Stanley  81 
Binney  v.  Russell  84 
Birch  V.  Birch  564 
V.  Depeyster  280 
Birchard  v.  Booth  197 
Bii-d  V.  Hueston  148 
V.  Randall  531 
BLit  V.  Barlow  107,  493 
V.  Kershaw  391,  416 
r.  Rothwell  6 
V.  Wood  395 
Bishop  V.  Chambre  564 
V.  Cone  484 
V.  Dotey  271 
Bissell  V.  Briggs  542,  548 
V.  Edwards  505 
V.  Morgan  81  a 
Bixby  V.  Franklin  Ins.  Co.  494 
Black  V.  Lamb                115,  172,  284 
V.  Lord  Braybrook          70,  514 


Black  V.  Woodron  165 

Blackbm-n  v.  Scholes  205 

Blackbm'ne  v.  State  41 

V.  Hargrave  311 

Blackett  v.  Lowes  137 

V.  Weir  356,  389,  395 

Blackham's  case  550 

Blackwell  v.  BuU  2»8 

Blad  i;.  Bamfield  541,542 

Blade  v.  Ch.  &  C.  R.  R.  Co.  3u5 

V.  Nolan  37,  568 

Blair  v.  Seaver  369 

V.  PeUiam  577,  581 

Blake  v.  Doherty  288 

V.  Exch.  Ins.  Co.  288 

r.  Pilford  .  251 

V.  Russ  563 

V.  Sanderson  25 

V.  White  109 

Blakemore  v.  Glamorganshire  536,  537 

Blanchard  v.  EUis  24 

V.  Pratt  49,  461 

V.  Young  74,  91,  561 

Bland  v.  Hasselrig  112 

V.  Swafford  319 

Blaney  v.  Rice  301 

Blantern  v.  Miller  349 

Blewett  V.  Tregonning  468 

BUgh  V.  Brent  270 

Blight  V.  Fisher  316 

Blight's  Lessee  v.  Rochester  25 

Bliss  V.  Brainerd  79,  81  c,  310 

V.  Mclntire      •  568 

V.  Mountain  397 

Bliven  v.  N.  England  Screw  Co.    293 

Blodgett  V.  Jordan  505 

Blood  V.  Goodrich  304 

V.  Rideout  108 

Bloodgood  V.  Jamaica  175,  331 

Bloor  V.  Davies  392 

Blossom  V.  Cannon  20,  46 

V.  Griffin  297 

Blower  v.  Hollis  511 

Bloxam  v.  Elsee  96 

Blundell  v.  Gladstone  291 

Blurton  v.  Toon  572 

Blythe  v.  Sutherland  145 

Boardman  v.  Reed  301 

Bob  V.  State  199 

Boddy  V.  Boddy  53 

Bodine's  case  13  a 

Bodmin  IVIines  Co.,  in  re  5 

Bodwell  V.  Osgood  8 

V.  Swan  55 

Bogardus  v.  Trinity  Church  145 

Bogart  V.  Brown  560 

Bogert  V.  Cauman  275 

Bogue  V.  Barlow  575 

Boileau  v.  Rudlin  171,  55] 


xxu 


INDEX  TO   CASES    CITED. 


Bolin  1-.  ]\Ie]lide-w 
Bolivar    Man.    Co. 

Man.  Co. 
BoUes  t'.  Beach 
Boltou  V.  Bishop  of  Carlisle 
V.  Corp.  Liverpool 


Neponset 


37, 
2i0, 


V.  Jacks 
Boltz  V.  Ballmau 
Bond  V.  Fitzpatrick 

V.  Ward 
Booge  V.  Parsons 
Booman  v.  Am.  Ex.  Co. 
Boormau  v.  Brown 

V.  Johnson  258, 

Boorne's  case 
Booth  V.  Swezey 
Boothby  v.  Stanley 
Boothwick  V.  Carruthers 
Borum  v.  Fonts 

Boston  V.  Weymouth  150, 

Boston  India-Kubber   Factory  v. 

Hoit 

Boston  &  P.  R.   R.  v.   Midland 

R.  R.  2.58, 

Boston  &  Wore.   R.  R.  Corp.  v. 

Dana  93,  108,  197,  252  a, 

Boston  &  Wore.    R.  R.  Corp.  v. 

Old  Colony  R.  R.  Corp. 
Bostwick  V.  Leach 
Boswell  V.  Blackman 

V.  Smith 
Bosworth  V.  Crotchet  122, 

Botham  v.  Swingler  95, 

Botsi'ord  V.  Moorhouse 
Bottoniley  v.  Forbes 

V.  United  States 
V.  Wilson  391, 

Boucher  v.  Lawson 
BouMin  V.  Massie  81, 

Boullemet  v.  State 
Bound  V.  Lathrop 
Bourne  v.  Boston 
t'.  Gatlirt'e 
V.  Turner 
Bours  V.  Tucki;rman 
Bowditch  V.  Mawley 
Bowen  v.  Bell 
Bower  v.  The  State 
Bowerbank  v.  Mouteiro 
Bowlby  V.  Bell 
liowles  V.  Neale 
Bowman  v.  Noiiou 
V.  Noyes 
V.  Rostron 

V.  Sanl)oru       322,  484, 
V.  Taylor 
V.  \Vo6d3 
Bowsher  c.  Calley 


320 

17 
573 
508 
238, 
214 

26 

39 
190 
180 
485 

38 
394 
275 
214 
190 
564 

81 
233 
570 

546 

285 

469 

440 
271 
177 

38 
153 
422 
265 
2:)2 

53 
401 
488 
558 
(5 
174 
561 
293 
406 
316 
.69 

62 
218 
283 
267 

81 
239 
356 
211 
577 

22 
440 
180 


Boyd  V.  Ladson  118 

V.  McConnell  556 

V.  McLean  206 

Boydell  V.  Drummond  112,  268 

Boyden  v.  Burke  108 

V.  Moore  110,  205 

Boyle  V.  Webster  197 

V.  Wiseman  94,  451 

Boynton  v.  Kellogg  54,  461 

V.  Willard  40 

Boys  V.  Williams 
Br.  Bk.  of  Mobile  v.  Coleman 
Brace  v.  Ormond 
Braeegirdle  v.  Bailey 
Brackett  v.  Hoitt 

V.  Mouutford 
V.  Norton 
Bradfield  v.  Tupper 
Bradford  v.  Manley 
Bradlee  v.  Neal 
Bradley  v.  Arthen 

V.  Beckett 

V.  Bradley 

V.  Goodyear 

V.  Iloldsworth 

V.  Neal 

V.  Ricardo 

V.  Wash.,  &c.  Co 
Bradshaw  v.  Bradshaw 


Bradstreet  v.  Neptune  Ins.  Co 


Brady  v.  Brady 
Brain  v.  Preece 
Brainard  v.  Buck 

V.  Clapp 
Bramhall  v.  Van  Campeu 
Brandao  v.  Barnett 
Branden  v.  Gowing 
Brauder  v.  Ferriday 
Brandigee  v.  Hale 
Brandon  v.  Cabiness 

V.  People 
Brandram  v.  Wharton 
Brandt  v.  Klein 
Brard  v.  Ackerman 
Brashier  v.  Jackson 
Brattle  St.  Ch 


291 

281 

474 

4  45 

513 

569  a 

488, 489 

174 

305 

353,  356 

491 

22 
527  a,  578 
118 
270 
356 
443 
297 
291) 

18, 
541 
440 
116 
197 

80 

43 
5 
242 
138 
420 
171 
331 
174 
241,  245,  564 
241 

73 


289, 


Bullard 
Hubbard 

Bray  (The)  Peerage 

Brazen    Nose    College   v.    Salis- 
bury 88, 

Brembridge  v.  Osborne 


Breton  v.  Cope 
Brett  V.  Beales 
Brewer  v.  Brewer 

V.  Knapp 

V.  Palmer 
Brewster  v.  Countryman 
V.  Doau 


17 

189 

20 

4D1 

38 

97,  484 

137,  139,  143,  481 

109 

38 

87,  9(5 

303 

115 


INDEX   TO   CASES   CITED. 


xxm 


Briant  v.  Eicke  73 

Brickell  v.  llulse  182 

Bridge  v.  Eggleston          53,  ISO,  307 

V.  Gray  ll-j  532 

V.  Wellington  423 

Bridges  v.  Arinoiu'  354 

Bridgewater's  (Lord)  case  497 

Bridgman  v.  Jennings  189 

397,  398 

V.  Georgia  117 

V.  Greenfield  et  al.  357 

V.  Hvatt  99 

V.  Wells  532 

Brigham  v.  Palmer  569 

V.  Peters  114,  577 

V.  Rogers  281,  303 

V.  Smith  24 

Bright  V.  Sugg  73 

Brighton  v.  \Valker  322 

Brind  v.  Dale  81 

Brinkerhoff  v.  Remson  272 

Brisco  V.  Lomax  139 

Brister  v.  State  214 

Bristol  V.  Dan  171 

V.  Slade  332 

Bristow  II.  AYright     51,  58,  60,  63,  66 

Britton's  case  226 

Broad  v.  Pitt  247,  248,  249 

Brock  V.  Kent  182 

V.  Milligan  369,  370 

V.  Sturdivant  303 

Brockbank  v.  Anderson  423 

Brocket  v.  Foscue  26 

Brogy  V.  Commonwealth  163 

Bromage  v.  Prosser  34 

Bromfteld  i\  Jones  51 

Brooks  V.  Barrett  75,  77 

V.  Bemis  70 

V.  Blanchard  73 

V.  Lowry  68 

V.  Tichburne  581  a 

V.  White  305 

Broom  v.  Bradley  394 

V.  Wootom  533 

Brotherton  v.  Livingston  358 

Brown  V.  Bellows  443,  444,  462 

V.  Brooks  262,  292 

V.  Brown    280,  356,  395,  429, 

582 

V.  Burnes  358 

V.  Bryne  292 

V.  Cambridge  305 

V.  Commonwealth  53, 156, 162, 

165 

V.  Edson  505,  513 

V.  Getchell  316 

V.  Hicks  485,  493 

V.  Howard  358 

V.  KimbaU  574 


Brown  v.  King 

42 

V.  Lasselle 

341 

V.  Leeson 

253 

V.   Lynch 

420 

V.  Meta 

38 

V.  Mooers 

469 

V.  Payson 

245 

V.  Philadeliihia  Bank 

5 

V.  Pinkham 

602 

V.  Piper 

6 

V.  Saltonstall 

290 

V.  Slater  286,  287 

V.  State  217 

V.  Tlie  Independence  498 

V.  Thorndike  287, 288 

V.  Thornton  49 

V.  Wood  19,  443 

V.  Woodman  83,  97 

Brown's  case  218,  344 

Browne  v.  Gumming  471 

V.  Murray  74 

BrowneU  v.  Pacific  R.  R.  Co.         108 

Brubaker  v.  Taylor  442 

Bruce  v.  Nicolopopulo  38  a,  94 

V.  Priest  55 

Bruff  V.  Conybeare  298 

Brune  v.  Thompson  6 

Brunswick  v.  INIcKeen  20 

Brush  V.  Blanchard  513 

V.  Wilkins  484 

Bryan  v.  Forsyth  479 

V.  Wear  483 

Bryant  v.  Rittenbush  858 

V.   The   Royal  Excliange 

Ass.  Co.  292,  294 

Buchanan  v.  Moore  145 

Bucher  v.  Jarratt  89 

Buck  V.  Appleton  35 

Buckler  v.  Millard  234 

Buckley  v.  Beardsley  268 

Buckminster  v.  Perry  77 

Bucknam  (7.  Barnum  177 

Bulkley  v.  Landon  68 

BuU  v'.  Clarke  554 

V.  Loveland  246,  452 

V.  Strong  356 

BuUard  v.  Briggs  266 

V.  Ppai-sall  444 

BuUen  v.  Michel  139,  142 

Bullock  V.  Koon  87 

Bumpus  V.  Fisher  37 

Bunbury  v.  Bunbury  239,  240 

V.  jNlathews  92 

Bundy  v.  Hart  43 

Bunker  v.  Shed  116 

Bunn  V.  AVinthrop  288 

Bunnell  v.  Butler  461 

Burbank  v.  Gould  26 

Burber  v.  Merriam  102 


XXIV 


INDEX   TO   CASES   CITED. 


BurchfielJ  r.  Moore 

565, 

568 

Burd  V.  Ross 

416 

Burden  v.  Cleveland 

551 

V.  Pratt 

445 

Burford  v.  McCue 

38 

Burgess  v.  Lane 

167, 

418 

V.  ^Merrill 

356 

V.  Steer 

58 

Burghart  v.  Angerstein 

493 

Burgiu  V.  Chenault 

301 

Bnrgoyne  v.  Showier 

564 

Burke  v.  Miller 

447, 

oo2 

Burleigh  v.  Stott 

174 

Burlen  I'.  Shannon 

525 

Burley's  case 

229 

Burling  v.  Patterson 

572 

Burlington  v.  Calais 

175 

Burn  V.  Miller 

303 

Burnett  v.  Phillips 

70 

V.  Smith 

532 

Bumham  v.  Adams 

118 

V.  Allen 

74 

V.  Ay  re 

564 

V.  Ellis 

113 

V.  Morrissey 

309 

Bumly  V.  Ball 

41 

Burns  v.  Burns 

273 

V.  Fay 

118 

Burrell  v.  Nicholson 

76 

474 

Bm-rough  v.  [Martin 

436 

Burt  V.  Palmer 

182 

Burtenshaw  v.  Gilbert 

273 

Burton  I'.  Driggs 

93 

561 

V.  Griffiths 

49 

V.  Ilinde 

391 

405 

17.  Issitt 

112 

V.  Plummer 

436 

437 

Bury  V.  Blogg 

5 

Busby  V.  Greenslate 

397 

Bush  V.  Hailing 

413 

r.  Stowell 

174 

Bushell  V.  Barrett 

373 

Bushwood  V.  Pond 

58,  72 

Bussard  v.  Levering 

40 

Bustin  V.  Rogers 

118 

Butcher  v.  Stuart 

285 

Butcher's  Co.  v.  Jones 

422 

Butler  V.  Alnutt 

40 

V.  Benson 

436 

V.  Butler 

423 

V.  Cancer 

95 

,422 

V.  Collins 

53 

V.  Cooke 

392 

V.  Gale 

280 

V.  !Moor 

247 

V.  Mountgarret 

40,  104, 

107, 
131 
421 

V.  Tufts 

V.  Warren 

391 

,402 

Butler  V.  Wright 
Buttrick  v.  Holden 
Butts  V.  Swart  wood 
Buxton  V.  Cornish 


c. 

Cabot  V.  Givin 
Caddy  v.  Barlow 
Cadwell  v.  The  State 
Cady  V.  Shepherd 
Cailland  v.  Vaughan 
Caine  v.  Horsefall 
Calder  v.  Rutherford 
CaldweU  v.  N.  J.  St.  Nav, 
Calhoun  v.  Dunning 
Calkins  v.  Evans 
V.  State 
Call  V.  Dunning 
Callahan  v.  Shaw 
Calmady  v.  Rowe 
Calvert  v.  Flower 
Calvin  v.  D wight 
Cambi'idge  v.  Lexington 


116 
532 
369 
304 


83,  92 

471 

54 

112,  174 

320,  324 

280,  294 

7H 


Co. 


74 

535 

260 

331 

569,  572 

49,  461 

45 

563 

440 

47,  109, 

293 

421 

210 

105 

174 

281 

533 

441 

37,  156,  440 

392 


Camden  v.  Doremus 
Cameron  v.  Lightfoot 
Camoys  Peerage  (The) 
Camp  V.  Dill 
Campbell  v.  Hodgson 

V.  Phelps 

V.  Rickards 

V.  State 

V.  Tousey 

V.  Tremlow 
Canal  Co.  v.  Railroad  Co 
Cane  v.  Lord  Allen 
Cannell  v.  Cm'tis 
Canney's  case 
Cannon  v.  Jones 
Card  V.  Grinman 
Careless  v.  Careless 
Carleton  v.  Patterson 
V.  Whitcher 
Carlisle  v.  Burley 
V.  Eady 
V.  Garland 
V.  Hunley 
Carlisle  (IVIayor  of)  v.  Blamire 
Carlos  V.  Brook 

Carmack  v.  The  Commonwealth 
Carmalt  v.  Post 

Carmarthen,  Mayor,  &c.  v.  Lewis 
Carnarvon  v.  Villebois 
Carne  v.  Litchfield 

V.  Nicholl 
Carpenter  v.  Ambroson 
V.  BuUer 


108, 


339 
490 

80 
83,  92 
165 
402 
273 
289 
322 
427 
392 
95,  422,  420 
180 
462 
211 
461 
ISO 
440 

73 
139 
451 
109 
431 

2G 


INDEX  TO   CASES   CITED. 


XXV 


Carpenter  v.  Davies  84 

V.  Gioff  103 

V.  Havward  49 

V.  Hoilister  190 

V.  King  281 

V.  Leonard  101 

V.  AVahl  54,  462 
Carpenters,    &c.    of    Shre-vrsbury 

V.  Havward  2,  405 

Carpmael  v.  Powis  239,  240 

Carr  v.  Burdis  571 

V.  Cornell  334 

V.  Gale  421 

I'.  Miuner  84 

Carrington  v.  Carnock  510 

V.  Jones  155 

V.  Roots  271 

V.  Stimson  322 

Carriss  v.  TattershaD  504 

Carroll  v.  Norwood  144 

V.  The  State  lOS 

V.  Tyler  116,  120 

V.  AVaring  39 

Carskadden  v.  Poorman  104 

Carson's  case  65 

Carter  v.  Bennett         196,  204,  210, 

523 

r.  Boeliem  440,  441 

V.  Buchanon  lOS 

V.  Jones  76 

V.  Pierce  408,  409 

V.  Prvke  52 

V.  Wilson  502 

Cartwriglit  v.  Williams  426 

Carver,  in  re  272 

V.  Jackson        22,  23,  189,  523 

V.  Tracy  173 

Cary  v.  Adkins  185 

V.  Gerrish  38 

V.  Pitt  577 


Caiifman    v 

Spring 
Cavalier  v.  Collins 
Cavan  v.  Stewart 
Cazanove  v.  Vaughan 


Cong,    of     Cedar 

145 

118 

514 

516,  553,  554 


Case  V.  Mobile 

5 

V.  Potter 

118 

V.  Reeve 

523 

Cass  V.  Cameron 

409 

Cass's  case 

220, 

222 

Cassidy  v.  Stewart 

""6 

Cassoii  V.  Dade 

272 

Castellana  v.  Peillon 

375 

Castelli  v.  Groome 

320 

Castle  V.  Bullard 

53, 

358 

CasweU  v.  Curtis 

40 

Casy  V.  O'Shaunessy 

103 

Cates  V.  Hardacre 

451 

V.  Loftixs 

38 

Catlett  V.  Pacific  Ins. 

Co. 

484 

CatUn  V.  Bell 

284 

Caton  V.  Lenox 

165 

Cator  V.  Stokes 

498 

Catt  V.  Howard 

179,  201 

,439 

Central  Bridge  Corp.  v.  Butler        74 

Chabbock's  case  219,  222,  379 

Chad  V.  Tilsed  293 

Chadsey  v.  Greene  182 

Chadwick  v.  Burnley  286 

V.  Upton  402 

Chaffee  v.  Baptist  M.  C.  272 

V.  Thomas  420 

V.  United  States  37 

Chalfant  v.  Williams  305 

Chamberlain  v.  Bradley  484 

V.  Carlisle  527,  531 

V.  Gorham  349 

V.  Willson  451 

Chamberlain's  case  311 

Chambers  v.  Bernasconi  109,  115, 

152 

Chamblis  v.  Tarbox  575 

Champion  v.  Plummer  268 

Champney's  case  257 

Champneys  v.  Peck  40,  116 

Chance  v.  Hine  423 

Chandler  v.  Grieves  5 

V.  Home  432 

V.  Le  Barron  576,  581 

V.  Mason  385 

V.  Morton  385 

V.  Yon  Roedei  49 

Chanoine  v.  Fowler  5,  488 

Chapel  V.  Washburn  •  181 

Chapin  i'.  Curtis  523 

Chapman  i-.  Beard  196 

V.  CalUs  285 

V.  Chapman  103 

V.  Coffin  469 

V.  Cowlan  135 

V.  Davis  319 

.  V.  Emden  81 

V.  Graves  356,  357 

r.  Herrold  6 

V.  Searle  207,  208 

V.  Twitchell  182 

V.  Walton  441 

Chappell  V.  Bull  24 

Chardon  v.  Oliphant  112 

Charleston,    &c.    R.    R.  Co.    v. 

Blake  113 

Charlton  v.  Coombs  240 

V.  Lawry  113 

Charnock  v.  Devings  432 

Chamock's  case  379 

Chase  v.  Hathaway         503,  513,  518 

r.  Jewett  281 

V.  Lincoln  440 


XXVI 


INDEX  TO   CASES   CITED. 


Chase  i'.  Lovering  357 

V.  Smith  120 

V.  Spencer  118 

Chatfield  v.  Fryer  138 

V.  Lathrop  423 

Chaurand  v.  Angerstein  280,  440 

Cheetham  v.  Ward  427 

Chehnsford  Co.  v.  Deniarest  181 

Chelsea  Water  AVorks  v.  Cowper    21, 

570 
Chenango  v.  Birdsall  356 

Cheney's  case  289 

Cherry  v.  Boyd  145 

V.  Skide  301 

Chesley  v.  Frost  5(J8 

Chess  V.  Chess  163,  165,  166,  168 

Chester  v.  Bank  of  Kingston  284,  305 
Cheyne  v.  Koops  395 

Chickering  v.  Failes  40 

Child  V.  Chamberlain  358 

V.  Grace  199 

Childrens  v.  Saxby  348 

Childress  v.  Cntter  484,  493,  498 

Chippendale  v.  Thurston  174 

Chirac  v.  Reinicker  73,  237,  245 

Chitty  V.  Dendy  6 

Choate  v.  Burnham  293 

Choteau  v.  Ilaitt  562 

Christian  v.  Combe  212 

Christie  v.  Bishop  178 

Chubb  V.  Salomons  252  n 

Church  V.  City  of  Milwaukee  581 
V.  Ilubbart  14,  487,  488,  514 
V.  Shelton  171,  195 

Chui-chill  V.  FuUiam  197 

V.  Suter  379,  385 

V.  Wilkins  58 

Churchman  v.  Smith  118 

Cilley  V.  Tenny  303 

Cincinnati  v.  White  207 

Cist  V.  Zeigler  531 

Citizen's     Bank    v.     Nantucket 

Steaml)oat  Co.  426 

City  Bank  v.  Adams  281 

City  Bank  of  Baltimore  v.  Bate- 
man  113,  332,  452 
City  Council  v.  King  331 
City  of  London  v.  Clerke  139 
Claflin  I'.  Carpenter                           271 
Clagett  V.  Phillips                          240  a 
Clancy's  case  373 
Clapp  V.  Balch  73 
V.  Mandeville                          389 
V.  Tirrell  26 
Clapton  V.  Briscoe                             569 
Clarges  v.  Sherwin                            539 
Clark  V.  Alexander                    42,  174 
V.  Barnwell                                305 
V.  Bigelow                                 440 


Cliirk  V.  Bradshaw 

112 

V.  Carter 

426 

V.  Courtney 

575 

V.  Eckstein 

564 

V.  Faunce 

17 

V.  Fletcher 

563 

V.  Gifford 

284 

V.  Gleason 

112 

V.  Gray 

66,  69 

V.  Hopkins 

39 

V.  Houghman 

191 

V.  Huffaher 

209 

V.  Irvin 

537 

V.  Johnson 

428 

V.  Kirklaud 

392 

V.  Lucas 

394,  397 

V.  Lyman 

40 

V.  ]\Iagruder 

116 

V.  jSIiuiyan 

301 

V.  Eichards 

239 

V.  Saunderson 

575 

V.  Spence 

81,  348 

V.  Trinity  Church 

493 

V.  Vorce 

166,  437 

V.  Waits 

180 

V.  Wash 

284 

V.  Wilmot 

116 

Clark's  case 

65 

Ex'rs  V.  Carrington  ISO 

Ex'rs  V.  lleimsdyk    178,  257, 

260,  351 

Lessee  v.  Hall  375,  376 

Clarke  v.  Bank  of  Mississippi        489 

17.  Clarke  196,  204,  207 

V.  Courtney  84,  142 

V.  Gannon  408,  430 

V.  Robinson  551 

V.  Safferey  435 

V.  Wvburn  361 

Clarkson  v.  Woodhouse  139,  141,  143 

Clary  y.  Grimes  189 

Clawson  V.  Eichbaum  38 

Claxton  V.  Dare  139 

V.  Swift  533 

Clay  V.  Langslow  181 

V.  Patton  5 

r.  Stephenson  320 

V.  Williams  241 

Clay's  case  40 

Clayes  v.  Ferris  409 

Clayton  v.  Graham  550 

t".  Gregson  280 

Clealand  v.  Huey  164,  165 

Cleave  v.  Jones  237 

Cleaveland  v.  Flagg  301 

Cleaves  v.  Lord             .  68 

Clement  v.  Brookes  457 

V.  Durgin  802,  304 

dementi  v.  Goulding  5 


INDEX  TO   CASES   CITED. 


XXYll 


Clements  v.  Hunt 

Clementson  v.  Gandy 

Gierke  v.  Isted 

Glermont  v.  Tulidge 

Cleveland  v.  Burtou 

Cleves  V.  Foss 

Clifford  V.  Hunter 

V.  Parker 

V.  Turrill 

Clifton  V.  United  States 

Clinan  v.  Cooke 

Cline  0.  Little 

Clinton  v.  Hooper 

Clipper  (The)  v.  Logan 

Close  I'.  Gluey 

Clothier  v.  Chapman 

Cloutman  i'.  Tuuison  495 

Clough  V.  Bowman  289 

Cluff  V.  Mat.  Benefit  Life  Ins.  Co.  43 

Cluggage  V.  Swan  116,  120 

Cluunes  v.  Pezzey  37 

Coates  V.  Birch  241,  245 

Cobb  V.  Newcomb  40 

Cobbett  V.  Hudson  432 

V.  Kilminster  581 

Cobleigh  v.  Young  20 

Coburn  v.  Gdell  451,  451  a 

Cochrau  i'.  Ammon  358 

Cocks  V.  Purdy  487 

Cockshott  V.  Bennett  172 

Codmau  v.  Caldwell  117 

Coe  V.  Hutton  197 

Coffin  V.  Anderson  4(39 

V.  Jones  254,  338 

Coghan  v.  Williamson  572 

Cogswell  V.  Dolliver  118 

Cohen  v.  Templar  246 

Coit  V.  Milliken  4,  479 

V.  Starkweather  288 

V.  Tracy  112,  174 

Colbern's  case  340 

Colclough  V.  Smith  301 

Cole  V.  Anderson  118 

V.  Cole  192 

V.  Hawkins  316 

V.  Jessup  437 

Cole's  Lessee  v.  Cole  376 

Coleman,  in  re  272 

V.  Anderson  20,  46 

V.  Commonwealth     49,  365 

V.  Fobes  174 

V.  People  53 

V.  Southwick  lOl 

V.  Wolcott  349 

Coles  V.  Trecothick  269 

Colledge  v.  Horn  186 

Collender  (•.  Uunsmore  284  a 

Collett  V.  Lord  Keith  193 

Collier  o.  Nokes  192 


103 

CoUier  v.  Simpson 

440 

288 

V.  State 

161 

69 

Colling  V.  Tremeck 

97 

581 

Collins  V.  Bayntun 

571 

200 

V.  Blantern 

284 

269 

V.  Dorchester 

52 

445 

V.  Godefroy 

310 

564 

V.  Lemasters 

437 

285,  304 

V.  ]\latthews 

502 

37 

V.  Maule 

84 

269 

V.  McCrummen 

42C 

427 

Colman  v.  Dobbins 

480 

296 

Colpoj-s  V.  Colpoys 

288 

440 

Colsell  V.  Budd 

39 

451 

Colson  V.  Bonzey 

484,  494 

137,  145 

Colt  V.  Miller 

66 

Columbia  (Bank  of)  v.  Magruder  423 
Columbia  Ins.  Co.  v.  Lawrence  2 

Columbia  Man.  Co.  v.  Dutch  353,  356 
Colvin  V.  H.  M.  Proc.  Gen.  30 

Combe  v.  Corp.  of  London  240  a 

V.  Pitt  210 

Combs  V.  Winchester  462 

Commercial  Bank  of  Albany  v. 

Hughes  387 

Commercial  Bank  of  Buffalo  r. 

KortwrigSit  568  a 

Commercial  Bank  of  Natchez  v. 

Smith  206 

Commonwealth  v.  Abbott  49 

V.  AUey  101 

V.  Andrews  440 

V.  Anthes  49 

V.  Bachelor    369,  370 
V.  Baird  331 

V.  Beckley  65 

V.  Bigelow  97 

V.  Billings  461 

V.  Blood  19 

V.  Bolcom  513 

V.  Bonner  331 

V.  Boyuton  382 

V.  Bosworth  381 

V.  Briggs  341 

V.  Bullard  281 

V.  BuzzeU        52,  371, 
419 
V.  Byrou  450 

V.  Cain  449 

V.  Call  199 

V.  Carey  156, 577,  580 
V.  Casey  .  161  ft 

V.  Castles  573  /; 

I'.  Chase  484 

V.  Choate  81  c 

V.  ChurchiU  461 

V.  Clark  81  h 

V.  Cobb  133 

V.  Coe        49,  53,  577 


XXV  m 


INDEX  TO   CASES    CITED. 


Commonwealth  v.  Cooper  156 

V.  Crocker  199 

V.  Cuffeel99,220,229 
V.  Cunningham  440 
V.  Curtis  53 

V.  Dame  373 

V.  Dana  254  a 

V.  Davidson  563 

V.  Davis  51  a 

V.  Dorsey  440 

V.  Downing  382,501, 
513 
V.  Drake         229,  217 
V.  Dudley  265 

V.  Eastman  197,  358, 
363,  445,  581 
V.  Eberle  233 

V.  Eddy  81  c 

V.  Elisha  537 

V.  Emery  91,  561 

V.  Falv(iy  65 

r.  Ford  513 

V.  Freely  316 

V.  Frost  414 

V.  Galavan  434 

V.  Gallaghan  200 

V.  Garth  49 

V.  Gibson  158 

V.  Glover  380 

V.  Goddard  449 

V.  Goodwin  13  a 

V.  Green  375,  376, 
421,  505 
V.  Hargesheimer  430 
V.  Harman  220,  221 
V.  Harvey  197 

V.  Harwood  108 

V.  Hatfield  81  c 

V.  Hawkins    34,  81c, 
462 
V.  Hersey  37 

V.  Hill  252,  366 

V.  Hills  370 

V.  Hogan  33 

V.  Horton  53,  537 
V.  Howe  223,  229 
V.  Hunt  449 

V.  Hutchinson  367 
V.  Ingraham  469 

V.  Jeffries  40,  197 
V.  Kendall  54 

V.  Kenney  197,  199 
V,  Kimball  79 

r.  King  158,225 

V.  Knapp       200,  229, 
231, 379 
V.  Kneeland  5 

V.  Lahey  79 

V.  Lanery  65 


Commonwealth  v.  Littlejohn  484 

V.  Lyden  450 

V.  Manson      335, 363 
V.  Marsh       330,  334, 
353,  357,  363 
V.  Maxwell  78 

V.  McDonald  460 

V.  McKie  81  6 

V.  McPike  108,  158 
V.  Montgomery  108 
r.  Morey219,220,223 
V.  Morgan  331,  451 
V.  ]\Iorrell  445 

V.  Mosler  222 

V.  Mosson  455 

V.  Moulton  -412 

V.  Mullen  451 

V.  Murphy      54,  461, 

462 
V.  Norcross  86 

V.  Parmenter  65 

V.  PauU  403 

V.  Pease  284 

V.  Pejepscot  Pro- 
prietors 24 
V.  Phillips  501 
V.  Pope  44C 
V.  Porter  49 
V.  Richards  165 
V.  Roark  509 
V.  Robbins  341 
V.  Roberts  158 
V.  Robinson  335,  407 
V.  Rogers  81  c,  373 
V.  Sackett  456 
V.  Samuel  78 
V.  Sanborn  200,  215 
V.  Shaw  449,  451, 
456,  457 
V.  Shepherd  253,  344 
r.  Slocum  275 
V.  Smith  252,  370 
V.  SneU  362 
V.  Stow  80 
I'.  Sturtevant  440 
V.  Taylor  223 
V.  Thrasher  53 
V.  Thurlow  79 
V.  Tilden  252 
V.  Tuckerman  229 
V.  Tuey  74 
V.  Turner  53 
V.  Vass  158,  159 
V.  Waite  414,  423 
V.  Walden  34 
V.  AValker  37,  199 
r.  Webster  13  a,  18, 
37,  54,  65,  81  b, 

576 


INDEX  TO   CASES   CITED. 


XXIX 


Commonwealth  v.  "Welch  412 

V.  Williams  49 

V.  AVilsou     440,  469, 

497 

V.  Woelper  493 

r.  Wood  382 

V.  Wright  451 

V.  York  18,  81  b 

Comparet  v.  Jernegan  489 

Comstock  V.  Hadlyme   74,  75,  76,  77, 

409 

V.  Pale  392,  430 

V.  Kayford  392 

Connecticut  v.  Bradish  331 

Connors  v.  People  451 

Conover  v.  Bell  452 

Conrad  v.  Griffey  462,  469 

Conyers  v.  Jackson  71 

Cook   V.  Ashmead  117 

V.  Booth  293 

V.  Brown  462 

V.  Loxley  207 

V.  Moore  53 

i;.  Parsons  272 

V.  Remington  349 

i;.  Soltan  46 

V.  Stearns  270 

r.  Totton  21 

V.  Wood  84 

Cooke  V.  Curtis  469 

V.  Jenner  533 

V.  Lamotte  .    88  a 

V.  Wilson  6 

V.  Woodrow  572,  575 

Cooley  V.  Norton  113,  450 

Coolidge  V.  Learned  17 

V.  New  York  Firemen's 

Ins.  Co.  484 

Coombs  V.  Coether  139,  484 

V.  Winchester  52,  449 

Coon  V.  Swan  239 

V.  The  State  215 

Cooper  V.  Socket  564,  580 

V.  Gibbon  37 

V.  Cranberry  40 

V.  Marsden  572 

V.  MorreU  118 

V.  IMowry  207 

V.  Shepherd  533 

V.  Smith  201,  268 

V.  Slade  36 

V.  Wakley  76 

V.  Whitehouse  73 

Coote  V.  Berty  54 

Cope  V.  Cope  28,  253,  344 

Copeland  v.  Tomlin  171 

V.  Watts  216 

Copes  V.  Pearce  103 

Copp  V.  Upham  452 


Copperman  v.  People  53 

Corbett  et  al.  v.  Barnes  533 

V.  Corbett  75 

Corbin  v.  Adams  113,  284 

Corinth  v.  Lincoln  108,  192 

Cornelius  v.  State  108 

Cornell  v.  Green  165 

V.  Vanartsdaleu  338 

Cornet  v.  Williams  84 

Cornish  v.  Abington  207 

V.  Pugh  341 

V.  SeareU  207 

Cornville  v.  Brighton  108 

Cornwall  v.  Isham  175,  333 

V.  llichardson  55 

Corporations  (the  case  of)  46 

Corps  V.  Robinson  197 

Corrie  v.  Cumming  107 

Corse  V.  Patterson  334 

Corsen  v.  Dubois  246,  558 

Corser  v.  Paul  197 

Cort  V.  Birkbeck  139 

Corwein  v.  Hames  331 

Cory  V.  Bretton  192 

Cossens,  ex  parte  451 

V.  Cossens  23,  26 

Cossham  v.  Goldney  395 

Coster  17.  Baring  559 

Costigan  v.  Mohawk  &   Hudson 

R.  Co.  37,  74 
Cotes  V.  Davis  185 
Cottle  V.  Payne  39 
Cotton  V.  James  76 
V.  Luttrell  358,  361 
V.  Witt  310 
CottriU  V.  Myrick  302,  440 
Couch  I'.  Meeker  283,  284 
Coulson  V.  Walton  564 
Coulter  V.  Am.  Ex.  Co.  444 
Counden  v.  Clarke  289 
Com-teen  v.  Touse  435 
Courtnay  v.  Hoskins  544 
Covanhovan  v.  Hart  163 
Coveney  v.  Tannahill  245 
Covington,  &c.  R.  R.  Co.  v.  In- 
gles 113 
Cowan  V.  Cooper  304 
Cowden  v.  Reynolds  443 
Cowling  V.  Ely  179 
Co-n^jer  v.  E.  Cowper  37 
Cox  V.  AUingham               .  518 
V.  Brain  205 
V.  Copping  474 
V.  Couveless  563 
V.  Davis  572 
V.  Hill  452 
V.  Morrow  43,  488  a 
V.  Painter  73 
V.  Pany  27 


XXX 


rSTDEX   TO   CASES   CITED. 


Cox  V.  Williams  385 

Coxon  V.  Lyon  61 

Coye  V.  Leach.  30 

Coyle  V.  Coyle  8i 

Cozzens  v.  Higgins  6 

Crabtree  v.  Clark  561 

Crafts  i:  Hibbard  301 

Craib  v.  D'Airth  173 

Craig  I'.  Browii  505,  506 

V.  Craig  469 

V.  Cundel  392 

V.  State  401 

Craigin  v.  Carleton  527  a 

Crake  v.  Crake  43 

Crandall  v.  People  331 

Crane  c.  Elizabeth  281  a 

V.  :Marshall  109,  570 

V.  Morris  23,  33 

Crary  r.  Sprague  163 

Craven's  case  65 

Cravin  v.  Shaird  118 

Crawford  v.  ]\Iorrell  56 

V.  Spencer  281 

Cray  v.  Halls  201 

Creamer  r.  Stephenson  285 

Crease  v.  Barrett     103,  128,  130,  130, 

139,  153,  189,  584 

445 


Creeby  v.  Carr 
Creed,  in  re 
Crenshaw  v.  Davenport 
Crew  V.  Blackburn 

V.  Saunders 
Criddle  v.  Criddle 
Crippen  v.  Dexter 
Crisp  V.  Platel 
Crispin  v.  Daglioni 

I'.  Williamson 
Critchlow  v.  Parry 
Crocker  v.  Crocker 

V.  Walsh 
Crofton  V.  Poole 
Crofts  r.  ]\Iarshall 
Cromack  i\  lleathcote 
Cronk  v.  Frith 
Crosby  v.  Percy 

V.  AVadsworth 
Cross  V.  Kaye 
V.  :Mill 
Crossfield's  case 
Croudson  v.  Leonard 
CroughtOn  i-.  Blake 
Crowley  i'.  Page  52,  81,  449,  462 

Crowninshield  v.  Crowninshield     74, 


41 

51a 

475 

475 

190 

469 

240 

94,  546 

60 

196 

289 

38 

195 

280 

240,  241 

572 

292,  572 

271 

195 

485 

255 

5,  541 

142 


92 


Crowninshicld's  case 
Crowther  v.  Ilopwood 
Cubliison  v.  McCreaiy 
Cudlip  V.  Rundle 
Culkiu's  case 


to,  to,  it 

111 

373 

369 

60 

05 


Cullen's  case 

451 

Cimiberland  Bank  v.  Hall 

564 

Cummin  v.  Smith 

195 

Camming  v.  French 

192 

Cummings  v.  Arnold 

302,  304 

Cuudell  V.  Pratt               454, 

456,  459 

Cunliffe  v.  Sefton 

572, 574 

Cunningham  v.  Knight 

428 

V.  Otis 

320 

V.  Wrenn 

296  a 

Cupper  V.  Newark 

353 

Curren  v.  Crawford 

117 

Currie  i'.  Child 

572 

Curry  v.  Lyles 

26 

V.  Raymond 

485 

Cm-tis  V.  Belknap 

573  6 

V.  Central  Railroad 

323 

V.  Graham 

358,  389 

r.  Groat 

533 

V.  Herrick 

40 

V.  March 

5,488  a 

V.  Rickards 

38 

V.  Strong 

309,  370 

r.  Wheeler 

74 

Curzon  v.  Lomax 

130,  139 

Cushing  V.  Billings 

74 

V.  Rice 

284 

Cushman  v.  Loker 

375,  420 

Cussons  V.  Skinner 

569  a 

Cutbush  V.  Gilbert             84 

116, 120 

Cutler  V.  Pope 

271 

V.  Wright                   480,  488  a 

Cutter  V.  New'^ling 

187 

V.  Powell 

292 

V.  "Wright 

43 

Ci:tts  V.  Pickering 

245 

Cutts,  in  Error  v.  United  States    566 

Cuyler  v.  McCartney 

190 

D. 

Da  Costa  r.  Jones 

Daggett  V.  Shaw 

Dailey  v.  N.  Y.  &  X.  H.  Railw. 

Daily  v.  State 

Dale  V.  Ilumfrey 

Dalison  c.  Stark 

Dalrymple  v.  Dalrjanple 

Dalston  v.  Cotesworth 

Dan  et  al.  v.  Brown       172,  174, 


Dana  v.  Fielder 
Daniel  v.  Daniel 

V 
V 


North 
Pitt 
Wilkin 
Daniels  v.  Conrad 


V. 


142 


253 
109 

156 

5 

2S2 

90 

488 

;}7 

176, 
273 
292 
239 
17 
182 

,  145 
449 


INDEX   TO   CASES   CITED. 


XXXI 


Daniels  v.  Hudson     River     Fii-e 

Ins.  Co.  441 

V.  Potter  111,  170 

Darby  v.  Ouseley  231,  439,  440 

Darling  r.  Westmoreland  52 

Dartmouth  College  v.  Woodward   331 

Dartmouth  (Countess)  v.  Roberts  189 

Dartmouth  (Lady)  v.  Roberts    46,  512 

Davenport  v.  Freeman  385 

V.  McKinuie  559 

V.  The  Commonwealth    49 

David  V.  Moore  348 

Davidson  v.  Bloomer  572 

V.  Cooper  568 

V.  Harrison  174 

Davies  v.  Davies  408,  463 

V.  Edwards  112,  174 

V.  Humphreys  115,  152 

V.  Lewis  137 

V.  Lloyd  115,  147 

V.  Lowndes  1()5,  131 

V.  Morgan  134,  135,  154, 

333,  395 

V.  Morris  333 

V.  Pierce  109,  147,  189 

V.  Ridge  176 

V.  Waters  241 

Davis  V.  Barr  421 

V.  Barrett  320 

V.  Barrington  281 

V.  Campbell  109 

V.  Carlisle  564 

V.  Dale  445 

V.  Dinwoody  334,  340 

V.  Fuller  115,  130 

V.  Jenney  564 

V.  Jones  284 

V.  IMason  75,  440 

V.  Rainsford  301 

V.  Robertson  209 

V.  Salisbury  349 

V.  Shields  268 

V.  Spooner  397,  508 

r.  State  164,  165 

V.  Todd  558 

V.  Wood  99,  524 

Davis  &  Carter's  case  374 

1  )avlin  V.  Hill  283 

Dawkins  v.  Silverlock  5 

Daws  V.  Shed  187 

Dawson  v.  Coles  173 

Day  V.  Cooley  444 

V.  Moore  513 

V.  Trigg  301 

Dayrell  v.  Bridge  510 

Deacle  v.  Hancock  134,  135 

Deacon's  case  256 

Deady  v.  Harrison  180 

Dean  v.  Commonwealth  37 


Dean  v.  Dean  266 
t'.  Knight  444 
Dean,  &c.  of  Ely  v.  Caldecott        150 
Dearborn  r.  Cross  302,  304 
Deas  V.  Darby  118 
De  Bode's  case  109 
De  Cossfe  Brissac  v.  Rathbone        546 
Decker,  ex  parte  568  a 
Deering  v.  Sawtel  385 
De  la  Chaumette  v.  Bank  of  Eng- 
land 81  a 
Delacroix  v.  Bulkley  303 
Delafield  i\  Freeman  392 
V.  Hand  503 
Delesline  v.  Greenland  27,  184 
Dellone  v.  Rehmer  387 
Deloah  v.  Worke  510 
Delogny  v.  Rentoul  192 
Den  V.  Clark  556 
V.  Downam  437 
I'.  Herring  145 
V,  Johnson  341 
V.  Oliver  208 
V.  Southard  145 
V.  Vreelandt  503 
Denn  v.  Cornell  24 
V.  Fulford  507 
V.  McAlister  84 
V.  Page  301 
V.  Spray  139 
V.  White  185,  341 
Dennett  v.  Crocker  87 
V.  Dow  443 
V.  Lawson  426 
Denning  i'.  Roome  484 
Dennis  v.  Codrington  237 
Dennis's  case  225 
Denslow  v.  Fowler  559 
Denton  v.  State  102 
Depeau  v.  Hyams  416 
Depue  V.  Place  581 
Derby  v.  Gallup  440 
De  Rosnie  v.  Fairlie  390 
De  Rutzven  r.  Farr  150,  154 
Desborough  r.  Rawlins  242,  244 
Descadillas  v.  Harris  416 
Deshon  i'.  Merchants'  Ins.  Co.       469 
Despau  v.  Swindler  6 
De  Symonds  v.  De  la  Conr  394 
Devonshire  (D.  of)  v.  Lodge  293 
Devries  v.  Phillips  451 
Dewdney  c.  Palmer  421 
Dewey  v.  Dewey  272,  572 
V.  Field  207 
De  Whelpdale  v.  Milburn       189,  210 
Dewhm-st's  case  228 
De  Wolf  V.  Strader  239 
Dexter  v.  Hayes  40 
Deybel's  case  6 


xxxn 


INDEX  TO  CASES   CITED. 


DezeU  v.  Odell 

Dicas  V.  Lawson 

Dickenson  v.  Coward 

V.  Dickenson 
V.  Fitchburg 
V.  McCraw 
V.  Prentiss 
V.  Shee 
V.  Valpey 

Dickerman  v.  Graves 


207 

319 

195 

192,  381 

440  b 

519 

399 

.  445,  447 

207 

254,  335,  337, 

344 

Dickinson  v.  Commissioner  281 

Dickson  v.  Evans  78 

Digby  V.  Stedman  IIG 

V.  Steele  97 

DiUon  V.  DiUon  440  b 

V.  Harris  288 

Dillon's  case  220 

Dimick  v.  Brooks  548 

Dimsdale  v.  Dimsdale  38  a 

Dinkins  v.  Samuel  35 

Di  Sora  (Duchess)  v.  PhiUips     514  a 

D'Israeli  v.  Jowett  484 

Ditchburn  v.  Goldsmith  253 

Divol  ('.  Leadbetter  195,  207 

Dix  V.  Otis  _   281 

Dixon  V.  Cooper  115,  416 

V.  Hammond  207 

V.  NichoUs  5 

V.  Sinclear  530 

V.  Vale  451 

Doak  V.  Wiswell  532 

Dobbs  V.  Justices  108 

Dodd  V.  Norris  54,  451 

Doddington  v.  Hudson  409 

Doddington's  case  26 

Doe  V.  Allen  197,  291 

V.  Andrews  41,  245 

V.  Aikwright  4«4,  493 

V.  Askew  484 

V.  Austin  109,  189,  207 

V.  Barnes  75,  92,  493 

V.  Bell  263 

V.  Benjamin  586 

V.  Benson  2s0 

V.  Beviss  300,  584 

V.  Beynon  142,  291 

V.  Biggs  197 

V.  Bingham  2G5,  406,  568 

V.  Bird  186 

V.  Brawn  83 

V.  Bray  104,  485 

V.  Burdett  570 

V.  Burt  287 

V.  Burton  151 

V.  Campbell  109 

V.  Caperton  272 

V.  Carpenter  272 

V.  Cavtwright  89, 90, 150, 484, 493 


Doe  V. 

V. 


Catamore 

Chichester 

Clifford 

Cole 

Cooke 

Coombs 

Coyle 

Davies 

Davis 

Deakin 

Derby 

Durnford 

E.  of  Jersey 

Edwards 

Errington 

Flemmiug 

Ford 

Foster 

Frankis 

Freeland 

Galloway 

Gilbert 

Green 

Greenlee 

Grey 

Griffin 

Gwillim 

Harris 

Harvey 

Hathaway 

Hawkins 

Hertford 

Hilder 

Hirst 

Iliscocks 

Hodgson 

Holton 

Hubbard 

Huddart 

Hurst 

Huthwaite 

Jack 

Jesson 

Johnson 

Joinville 

Jones 

Keeling 

Keley  » 

Kemp 

Lambly 

Langdon 

Langfield 

Lea 

Lewis 

Lloyd 

Long 

Lord  Geo.  Thynne 

Lyfoid 
,  !^iaisey 


564 

287,  291,  301 

560 

189 

46 

81 

94 

49,  103,  134,  570 

272 

41,  570 

164 

569 

287 

73 

73 

107 

284,  285 

164,  197 

198 

286 

301 

84,  241 

109 

84 

561 

41,  103 

277 

241 

87 

574 

113 

246 


568 

295  rt 

560 

287 

291,  301 

535 

46 

288,  289,  291 

84 

41 

78,  335,  573 

ocg 

109,  147,  189 

49,  142 

559 

53  a 

280 

211,  246 

109,  584 

208 

558 

24 

73 

154 

301 

889 


INDEX  TO  CASES   CITED. 


XXXI U 


Doe  V.  Manifold 

V.  Martin  277, 

V.  Mason 

V.  Mew 

r.  Michael 

V.  Miles 

V.  IMorgan 

V.  Morris 

V.  Murray 

V.  Nepean 

V.  Newton 

V.  Palmer 

V.  Passingham 

V.  Payne 

V.  Pearce 

V.  Pegge 

V.  Pembroke  (E.  of) 

V.  Penfold 

V.  Perkes 

V.  Perkins  436, 

V.  Pettett 

V.  Phelps 

V.  Phillips 

V.  Preece 

V.  Pulman 

V.  Putman 

r.  Pye 

V.  RandaU 

V.  Reed 

V.  Richards 

V.  Rickarby 

V.  Ries 

V.  Roast 

V.  Roberts 

V.  Robson 

V.  Ross 

V.  Rowe 

V.  Rowlands 

V.  Samples 

V.  Seaton 

V.  Shelton 

17.  Sisson 

V.  Sleeman 

V.  Smart 

V.  Smythe 

V.  Somerton 

V.  Spitty 

V.  Stacy 

V.  Staple 

V.  Statham 

V.  Steel 

V.  Stephenson 

V.  Stiles 

V.  Suckermore  576,  577, 

V.  Sybourn  46, 

V.  Tarver 

V.  Taylor 

V.  Thomas 

V.  Tooth 


116, 

73,  84,  245, 


240, 


272 
287,  291 
130 
518 
154 

97 
289 
561 
166 

41 

578,  580 
564 
144 

25,  109 
142 
207 
104 
42 
273 

437,  438 

109,  189 
144 
141 

406,  534 
558 
143 
197 
103 
46 
186 

109,  189 
561 
291 
142 

147,  153 

560,  582 

73 

74,  81 

21 

241,  484 

23 

52,  130 

136 

75 

207 

561,  562 
561 
154 

46 

23 

210 

469 

570 

579,  580 
212,  551 
134,  578 

291 
145,  246 
333,  391 


Doe  V.  Turford  40,  115,  116,  120, 

V.  Tyler  151,  386,  390, 

V.  Vowels  116, 

V.  Wainwright 

V.  Watkins 

V.  Watson 

V.  Webber  109, 

V.  Wheeler 

V.  Whitcomb  115,  151, 

V.  Wilde 

V.  AVilkins 

t'.  Williams  147,  392, 

V.  "\A'ilson 

V.  Wolley  21, 

V.  '\\'ombweU 

V.  Young 
Doe  d.  Gord  v.  Needs 
Taylor  v.  Roe 
Doker  v.  Hasler  254, 

Dolby  V.  lies 

Dolder  i'.  Lord  Huntingfield 
Dole  V.  Allen 
Donaldson  v.  Jude 

V.  Winter 
Doncaster  v.  Day 
Douelson  v.  Taylor 
Donn  V.  Lippman 
Donnel  i'.  Jones 
Donnelly  v.  State 
Donnohoo  v.  Brannon 
Doolittle  V.  Holton 
Doon  V.  Donaper 
Doorman  v.  Jenkins 
Dorlon  v.  Douglass 
Dome  V.  Southwork  Man.  Co. 
Don*  V.  Fenno 

V.  Mimsell 
Dorset  (D.  of)  v.  Ld.  Hawarden 
Dorsey  v.  Dorsey  189, 

Doty  V.  Wilson  421, 

Douglas  V.  Hart 

V.  Saunderson    104,  349, 
Douglass  V.  Branch  Bank 
V.  Mitchell 
V.  Reynolds 
V.  Spears 

V.  Tousey  54,  55, 

Dover  v.  Marston 
Dow  V.  Sawyer 
Dowden  v.  Fowle 
Dowling  V.  Dowling 
Downer  v.  Chessborough  49, 

V.  Rowell 
Downs  V.  Cooper  25, 

Dows  V.  McMichael 
Dowton  V.  Cross 
Drake  v.  Henley 
V.  iSIerriU 
V.  Mitchell 


147 
584 
151 
180 
240 
97 

no 

286 
154 
406 
571 
406 
581 
570 
197 
92 
290 
145 
337 
211 


510 
509 
163 
421 
546 
435 
445 
506 

40 

87 
108 
251 
114 

69 
284 
292 
545 
429 
118 
575 
5 

44 
288 
268 
461 
378 
116 
180 

53 
276 
436 
183 
531 
181 
385 
532 
533 


xxxiv 


INDEX  TO   CASES   CITED. 


Drake  v.  Mooney  40 

Dranguet  v.  Proudhomme  74 

Draper  v.  Garratt  60 

V.  Sykes  180 

Drayton  v.  Dale  207 

V.  WeUs  163 

Drennen  v.  Liadsey  462 

Drew  V.  Wood  450 

Drew's  case  219 

Drinkwater  v.  Porter  130,  140 

Drouet  v.  Rice  20 

Drown  v.  Smith  207 

Drowne  v.  Stiuipson  319 

Driunmond  v.  Attorney-General     280 

V.  Magruder  506 

V.  Prestman  187 

Drummond's  case  156 

Drumright  r.  Philpot  112 

V.  State  216 

Du  Barre  v.  Livette  239,  247 

Du  Bost  V.  Beresford  100,  101 

Duchess  of  Kingston's  case    248,  436, 

523 
Ducket  V.  Williams  320 
Ducoigne  v.  Schreppel  118 
Dudley  v.  Grayson  484 
V.  Summer  572 
Duel  V.  Fisher  390 
Duffield  V.  Scott  180 
Duffin  V.  Smith_                240,  241,  245 
Dugan  V.  Seekright  301 
Duke  V.  Pownall  427 
Dunbar  v.  ]Marden  572,  575 
V.  Mvdrj  128 
Duncan  v.  Beard  142 
V.  Hodges  568  a 
V.  Mickleham  389 
Duncomb  v.  Prindle  480 
Dundas  v.  Lord  Weymouth  69 
Dunham  i'.  Branch  426 
V.  Riley  559 
Dunham's  Appeal  440 
Duulap  V.  Waldo  506 
Dunn  t:  Aslett  444,  467 
V.  ]\Iurray  532 
V.  Packwood  386 
V.  Snell  190 
V.  Snowdon  41 
V.  The  State  158 
V.  Whitney  118 
Dunning  v.  Roberts  268 
Dunraven  v.  LlewelljTi  129,  145 
Dupuy  V.  Truman  93,  437 
Durell  V.  I5oderley  441 
V.  Evans  97 
Durham  (Bp.  of)  v.  Beaumont       469 
Durkee  v.  Lcland  239 
V.  Vermont  Central  Rail- 
road 84 


Durore's  case 

65 

Durston  v.  Tutham 

60 

Dutillet  V.  Blanchard 

479 

Dutton  V.  Gerrish 

281 

V.  Woodman 

112,  177, 

198, 

467 

532 

Duval  V.  Bibb 

26 

Dwight  V.  Linton 

288 

322 

Dwinel  v.  Pottle 

117 

Dwinell  v.  Larrabee 

561 

Dv^^er  V.  Collins 

24c 

561 

Dyer  v.  Ashton 

205 

V.  IMorris 

432 

V.  Smith 

488 

V.  TymeU 

848 

Dyke  v.  Aldridge 

180 

Dykers  v.  Townsend 

268 

Dyson  v.  Wood 

513 

E. 


Eagleton  v.  Gutteridge 

568 

Eames  v.  Eames 

42 

Earle  v.  Baxter 

20 

V.  Lewis 

142 

V.  Picken                  45, 

200 

203 

V.  Rice 

284 

V.  Sawder 

118 

Easby  v.  Aiken 

118 

Eason  v.  Chapman 

461 

East  V.  Chapman 

451 

East  India  Co.  v.  Campbell 

451 

V.  Evans 

349 

V.  Gossing 

416 

Eastman  v.  Bennett 

108 

V.  Cooper 

532 

I'.  IVIartin 

105 

V.  Tuttle_ 

207 

V.  AVinship 

167 

418 

Eaton  V.  Alger 

74 

Eddy  V.  Gray 

458 

Edge  V.  Pemberton 

52 

Edgell  V.  Bennett 

254 

Edgerly  v.  Emerson 

279 

305 

Edgerton  c.  Jones 

276 

V.  ^^'olf 

170 

Edie  V.  East  India  Co. 

5 

Ediniston  v.  Schwartz 

50(1 

Edmonds  v.  Lowe            391, 

401 

416 

V.  Rowe 

371 

V.  AValter 

435 

Edward  Altham's  case 

301 

Edwards  v.  Crock 

102 

t'.  Evans 

584 

V.  ]\Iattliews 

76 

r.  Weeks 

302 

?".  Williams 

197 

Egan  r.  Larkiu 

49 

INDEX   TO   CASES   CITED. 


XXXV 


Egg  V.  Barnet 

38 

Ennos  v.  Thompson 

276 

Eggleston  v.  Speke 

179 

Enos  V.  Tuttle 

108 

Eicke  V.  Nokes 

241, 

245 

Ensign  v.  Webster 

212 

Eld  V.  Gorham 

480 

Enterprise  (The) 

113 

Elden  v.  Keddell 

519 

Ephraims  v.  Murdoch 

164 

165 

Elder  v.  Warfield 

118 

Ereskine  v.  Mm-ray 

5 

Elderton's  case 

6 

Ernest  v.  Brown 

73 

Eldiidge  v.  Hawley 

196 

Erskine  v.  Boyd 

322 

V.  Knott 

20,45 

V.  Davis 

41 

Eldridge's  case 

217 

V.  Plummer 

271 

Elfe  V.  Gadsden 

286 

Eskridge  v.  State 

229 

Elkin  V.  Janson 

78,  79,  80 

Estill  V.  Taul 

530 

531 

Elkins  V.  Hamilton 

108 

Estrella  (The) 

4 

Ellicott  V.  Pearl 

137 

146 

Eustis  V.  Parker 

175 

Elliott  V.  Evans 

6 

Evans  v.  Birch 

80 

V.  Heath 

164 

V.  Eaton        389,  421, 

423 

552 

V.  Piersol 

103,  104 

132 

V.  Getting 

497 

V.  Porter 

533 

V.  Gibbs 

354 

V.  Smith 

207 

V.  Gray 

423 

EUis  V.  Ellis 

86 

V.  Hettick  • 

365 

389 

V.  Great  West.  R. 

R.  Co. 

33 

V.  King 

69 

V.  Park 

5 

V.  JSIorgan 

107 

V.  Saltan 

249 

V.  Rees                   139, 

313 

319 

V.  Smith 

323 

V.  Roberts 

271 

V.  Thompson 

292 

V.  Smith 

341 

V.  Watson 

210 

V.  Tarleton 

548 

V.  WiUard 

305 

V.  Yeatherd 

395 

Ellison  V.  Cookson 

296 

Everett  v.  Lowdhan 

432 

Ellmaker  v.  Bulkley 

445 

447 

Everingham  v.  RoundeU 

84 

Ellsworth  V.  Moore 

38 

Ewer  V.  Ambrose 

442 

443 

Elsam  V.  Faucett 

54 

102 

Ewins  V.  Gold 

392 

Elston  V.  Wood 

179 

Exchange  Co.  v.  Boyce 

498 

Elting  V.  Scott 

212 

Ex  parte  D'Obree 

19 

Elton  V.  Larkins 

186 

449 

Kip 

175 

Elwood  V.  Deifendorf 

189, 

420 

McXeU 

316 

Ely  V.  Ely 

564 

Emerson  v.  Blonden 

185 

V.  Brigham 

398 

F. 

V.  Fisk 

562 

V.  Lowell  Gas  Light  Co. 

440 

Fabens  i'.  TirreU 

81a 

V.  Murray 

564 

Fabyan  v.  Adams 

322 

V.  Providence 

420 

Facey  v.  Hurdon 

49 

V.  Tolman 

570 

Fairchild  v.  Dennison 

118 

V.  White 

103 

Faircloth  v.  Jordan 

560 

Emei-ton  v.  Andrews 

396 

Fairfield  Turn.  Co.  v.  Thorp 

332 

Emery  v.  Berry 

489 

Fairlie  v.  Denton 

198 

199 

V.  Fowler 

165, 

523 

V.  Hastings 

113 

114 

V.  Grocock 

46 

Fairmaner  v.  Budd 

212 

V.  Twombly 

472 

Fairtitle  v.  Gilbert 

24 

Emmerson  v.  Heelis 

269 

271 

Falkner  v.  Earle 

293 

Emmett  i'.  Butler 

356 

358 

Falkner  &  Bond's  case 

217 

Emmons  v.  Hayward 

75 

Falls  V.  Belknap 

175 

331 

V.  Littlefield 

26 

Fahnouth  v.  Moss 

248 

V.  Oldliam 

20 

V.  Thomas 

271 

Empson  v.  Griffin 

73 

(Earl  of)  V.  Robbing 

564 

England  v.  Slade 

25 

(Lord)  V.  George 

405 

Engles  V.  Bruington 

572 

Faner  v.  Turner 

108 

English  V.  Sprague 

513 

Fanning  v.  State 

37 

Ennis  v.  Smith 

514 

525 

Farley  v.  King 

552 

XXXVl 


INDEX  TO   CASES   CITED. 


Fanners'  Bank  v.  Whitehill  115, 116, 

147 

Farmers'  &  Mech.  Bank  v.  Boraef  437 

V.  Day      299 

U.Ward   489 

Farnsworth  v.  Briggs  518,  519 

Farr  v.  Payne  41 

V.  Swan  485 

Farrah  v.  Keats  319 

Farrant  v.  Spencei  288 

FaiTar  v.  Farrar  265 

V.  Merrill  46 

V.  Stackpole  286,  293 

V.  AVarfield  440 

Farrow  v.  Bloomfield  4tj3 

Farwell  v.  Hillard  539 

Fassett  v.  Brown  572 

Faucort  v.  Bull  396 

Faunce  v.  Gray  176 

Faxon  v.  HoUis  117,  118 

Fay  V.  Prentice  5 

Fazakerly  v.  Wiltshire  6 

Feemster  v.  Ringo  5 

Fell  V.  Young  570 

FeUows  V.  Williamson  108 

Felter  v.  MuUiner  510 

Fenn  v.  Granger      330,  353,  354,  452 

Fenner  v.  Lewis  187 

V.  Lon.  &  S.  E.  R.  R.  Co.  239 

Fenno  v.  Weston  199 

Fenwick  v.  Bell  440 

V.  RatcUff  284 

V.  Read  154 

V.  Reed  239 

V.  Thornton  179 

Fenwick's  case  251 

Ferdinand  v.  State  5 

Ferguson  v.  Harwood   56,  68,  69,  506 

V.  Mahon  546 

V.  Sulphen  284 

Fernandez,  ex  parte  451 

Fernandis  &  Hall  v.  Henderson      369 

Ferrand  v.  Milligan  584 

Ferrer's  case  19 

Ferrers  v.  Arden  533 

V.  Shirley  577 

Ferris  v.  Ward  19 

Fessenmeyer  v.  Adeock  38 

Fetherly  v.  Waggoner  570 

Fiedler  v.  Smith  66 

Field  V.  Holland  178 

V.  Mitchell  394 

V.  Snell  428 

V.  Winslow  6!) 

Fife  V.  Commonwealth  81  c,  219 

Fifield  V.  Richardson  108 

V.  Smith  422 

Filmer  v.  Gott  284 

Finch  V.  Bishop  of  Ely  474 


Finn's  case 

163 

Firkin  v.  Edwards 

562 

Fischer  v.  Morse 

329 

Fish  V.  Hubbard 

300 

V.  Skut 

34 

V.  Travers 

75,76 

Fisher  v.  Bartlett 

207 

V.  Dane 

18 

V.  Diebert 

296  rt 

i;.  Kitchingman 

510 

V.  True 

190 

V.  Tucker 

112 

V.  Willai'd 

421 

Fiske  V.  Ronald 

451 

Fitch  V.  Bogue 

349,  558 

V.  HiU 

342 

V.  Smallbrook 

375 

Fitchburg  Bank  i\  Greenwood       288 

Fitler  v.  Shotwell  485,  493 

Fitzgerald  v.  Elsee  572 

V.  Fauconberg  564 

Fitzhugh  V.  Wiman  305 

Fitzpatrick  v.  Fitzpatrick  290 

Fitzvvalter  Peerage  579,  580 

Flagg  V.  Mann  421 

V.  Mason  109 

Flanagan  v.  People          .  81  c 

Flanders  v.  Davis  38  n 

Fleming  v.  Gilbert  302,  304 

V.  Gooding  207 

Flemming  v.  Clark  86 

Fletcher  v.  Braddyl  40 

V.  B.  &  M.  R.  R.  449 

V.  Froggatt  201 

V.  Willard  305 

Flight,  ex  parte  285 

Flindt  V.  Atkins  514 

Flinn  v.  Calow  281 

V.  M'Gonigle  558 

Flint  V.  Allyn  356 

Flourenoy  v.  Durke  518 

Flower  v.  Herbert  204,  207 

Floyd  V.  Bovard  445 

V.  Ricks  5 

114 

581 

Folkes  V.  Chadd  53,  440 

Follain  v.  Lefevre  6 

Folsom  I'.  Mancliester  252  a 

V.  IMussey  304 

Fonnereau  v.  Poyntz  288 

Foot  V.  Glover  532 

V,  Tracy  55 

Foote  V.  Cobb  572 

V.  Havne  239 

Forbes  v.  Wale  21,  144,  349,  570 

Ford  V.  Ford  461 

V.  Gray  23 

Forrest  v.  Shores  26 


Fogg  V.  Child 
V.  Dennis 


INDEX  TO    CASES    CITED. 


XXXYU 


Forrester  v.  Pigou   167,  392,  395,  418 
Forshaw  i>.  Lewis 
Forster  v.  Hale 
Forsyth  v.  Ganson 
Forsythe  v.  Norcross 
Fort  V.  Clarke 
Fortescue  &  Croak's  case 
Foss  V.  Haynes 
Foster  v.  Alanson 
V.  Beals 


V.  Earl  of  Derby 


Hall 
V.  Jolly 
V.  Mackay 
V.  Pierce 
V.  Pointer 
V.  Shaw 
V.  Sinkler 
V.  TruU 
Foster's  case 


239,  241,  559 

26G 

176 

117 

104,  204 

349 

456 

303 

212 

536 

237,  240,  241 

281,  304 

558 

451 

562 

165,  539 

118 

521 

65 

Fotheringham  v.  Greenwood  387,  395 

Fouke  V.  Flemming  480 

Foulkes  V.  Selway  54,  101 

Fountain  v.  Coke  347 

V.  Young  241 

Fonts  V.  State  220,  220  a 

Fowler  v.  Coster  75,  76 

V.  Etna  Ins.  Co.  54 

V.  Merrill  323 

V.  Savage  539 

Fox  V.  Adams  347 

V.  Clifton  207 

V.  Jones  472 

V.  Keil  569 

V.  Whitney  385 

V.  Widgery  25 

Foxcroft  V.  Nevens  187,  356 

Foy  V.  Mtna  Ins.  Co.  441 

France  v.  Lucy  562 

Franchot  v.  Leach  284 

Francia's  case  217,  235 

Franklin  Bank  v.  Freeman  416 

Eraser  v.  Harding  430 

V.  Hopkins  494 

V.  Marsh  179,  427 

Frayes  v.  Worms  54^ 

Frazier  v.  Laughlin  356 

Frear  v.  Evertson     172,  829,  347,  353 


V.  Hardenbergh 

Free  v.  Hawkins 

Freeholders,  &c.  v.  State 

Freeland  v.  Heren 

Freeman  v.  Ai-kell 
V.  Brittia 
V.  Cooke 
V.  Lucket 
V.  Morey 
V.  PhiUips 


271 
281 

20 
197 
252 
385 
207 
387 

40 

129,  132,  135, 

139 


Freeman  v.  Thayer 

20 

V.  Walker 

210 

French  v.  French 

550 

V.  White 

53 

Friedlander  v.  London  Assur.  Co. 

443 

Frith  V.  Barker 

280 

Frontine  v.  Frost 

80 

Frost  V.  Everett 

304 

V.  HoUoway 

459 

V.  Shapledgh 

521 

V.  Spaulding 

301 

Froude  v.  Hobbs 

49 

Frye  v.  Barker 

118 

174 

V.  Gragg 

164 

Fuller  V.  Crittenden 

212 

305 

V.  Hampton 

175 

192 

V.  Rice 

822 

V.  Wheelock 

417 

Fulton  V.  Hood 

440 

Fulton  Bank  v.  Stafford 

447 

Furber  v.  Hilliard 

362 

Furbush  v.  Goodwin 

805 

468 

Furly  V.  Newham 

312 

320 

Furman  v.  Ray 

118 

Furneaux  v.  Hutchins 

52 

Fui-neaux's  case 

65 

Fursden  v.  Clogg             113 

149 

152 

Fyler  v.  Givens 

268 

Fyson  v.  Kemp 

508 

G. 


Gabay  v.  Lloyd  292 

Gainsford  v.  Grammar  245 

Galbraith  v.  Galbraith  423 

Gale  V.  Lincoln  197 

V.  Nixon  268 
Galena,  &c.  R.  R.  Co.  v.  Fay       108, 

462 

Gandolfo  v.  State      '  55 

Garber  v.  State  108 

Garbutt  v.  Simpson  458 

Garden  v.  Creswell  319 

Gardere  v.  Columbian  Ins.  Co.       514 

Gardiner  v.  Croasdale  61 

V.  McMahon  113 

Gardner  v.  Chase  305 

V.  Moult  182 

V.  People  37 

V.  Way  118 

Garey  v.  Nicholson  201 

Garlock  v.  Geortner  38 

Garnett  v.  Ball  184 

Garrels  v.  Alexander  577 

Garrett  v.  Banning  197 

V.  Stewart  26 

Garrott  r.  Johnson  165,  532 

Garth  v.  Howard  113 


XXXVIU 


INDEX  TO   CASES   CITED. 


Gartside  v.  Outram 

240 

Garvin  v.  Wells 

5 

Garwood  v.  Dennis 

24 

V.  Garwood 

288 

Gaskill  V.  Skeene 

198 

Gass  V.  Gass 

175 

V,  Stinson        42] ,  M5 

461 

,  554 

Gathercole  v.  Miall 

558 

Gaiil  V.  Fleming 

76 

Gay  V.  Bowen 

112 

Geach  v.  Ingall 

73,70 

Gebhardt  v.  Shindle 

430 

V.  Skinner 

365 

Geery  v.  Hopkins 

474 

Gelston  v.  Hoyt 

541 

543 

General  i'.  Hitchcock 

450 

Gening  v.  The  State 

79 

George  v.  Joy 

305 

430 

V.  Kimball 

409 

V.  Pierce 

167 

V.  Sargent 

350 

V.  Stubbs 

423 

V.  Surrey 

572 

577 

V.  Thompson 

562 

Geralopulo  v.  Wieler 

97 

Gerdiug  v.  Walter 

38 

Gerish  v.  Chartier 

53 

Gerrish  v.  Cummiugs 

356 

357 

V.  Sweetser 

192 

V.  Towne 

287 

Getchell  v.  Heald 

174 

Geter  v.  Martin 

119 

Gevers  v.  Mainwaring 

394 

417 

Geyer  v.  Irwin 

316 

Gibblehouse  v.  Strong 

109 

190 

Gibbon  v.  Coggan 

97 

V.  Featherstonhaugh 

38 

Gibbon's  ease 

484 

493 

Gibbons  v.  Powell 

502 

Gibbs  V.  BjTant 

358, 

427 

V.  Gilead 

49 

V.  Pike 

584 

Gibney  v.  Marchay 

197 

Gibney's  case 

229 

Gibson  u.  Hunter 

53 

V.  Jeys 

80 

V.  McCarty 

362 

V.  Peebles 

121 

V.  Stevens 

6 

V.  Waterhouse 

78 

V.  Winter  et  al. 

173 

Gilbert  v.  Bulkley 

205 

V.  Manchester 

430 

V.  Thompson 

532 

Gilchrist  v.  Bale              102, 

108, 

341 

Gildersleeve  v.  Caraway 

165 

V.  Mahoney 

201 

Giles  V.  O'Toole 

440 

Gilla;d  v.  Bates 

244 

Gilleland  v.  Martin 
Gillet  V.  Abbott 
V.  Sweat 
Gilliam  v.  State 
Gillies  V.  Smither 
Gillighan  v.  Tebbetts 
Gilliland  v.  Sellers 
Gilmore  v.  Bowden 
Gilpin  V.  Vincent 
Gitt  V.  Watson 
Givens  v.  Bradley 

V.  Filer 
Glascock  V.  Hayes 
Glassell  v.  Mason 
Gleadow  v.  Atkin 


115, 


Gleason  v.  Mc Vicar 
Glen  V.  Grover 
Glenn  v.  Rogers 
Glossup  V.  Pole 
Glubb  V.  Edwards 
Glynn  v.  Bank  of  England 
Goblet  V.  Beechy 
Goddard  v.  Gardner 

V.  Ingram 

V.  Parr 
Goddard's  case 
Godefroy  v.  Jay 
Godfrey  v.  Norris 
Goldie  V.  Gunston 

V.  Shuttle  worth 
Goldshede  v.  Swan 
Goldsmith  v.  Bane 

V.  Picard 
Goldstone  v.  Davidson 
Goltra  V.  Wolcott 
Gooch  V.  Bryant 
Goodacre  v.  Breame 
Goodall  V.  State 
GoodeU  V.  Smith 
Goodfellow  V.  Inslee 
Goodliay  v.  Hendry  95, 

Goodhue  v.  Bartlett 
Goodier  v.  Lake 
Goodinge  v.  Goodinge 
Goodman  v.  Harvey 

V.  James 

V.  The  Collector 
Goodrich  v.  Longley 

V.  Weston 
Goodi'ight  V.  Hicks 

V.  Moss    103,  134 
V.  Saul 
V.  Straphan 
Goodtitle  v.  Baldwin 

V.  Braham 

V.  Clayton 

V.  Southern 


41 
23 

564 

461 

84 

112 

6 

348 

333,  388 

38 

55 

268 

532 

558 

116,  122, 

149,  153 

60 

260 

562 

556 

572 

117,  121 

288 

239 

112 

458 

24 

508 

572 

207 

186 

285 

581 

54 

513 

254 

564 

395 

162 

96,  281 

560 

392,  422, 

420 

323 

558 

288 

81  a 

506 

480 

281,  286 

558 

55 

,  253,  344 

106 

568  a 

45 

75,  434 

443 

301 


INDEX  TO   CASES   CITED. 


XXXIX 


Goodtitle  v.  Welford        347,  419,  42!) 

Goodwin  ('.  Appleton  6 

V.  Hubbard  266 

V.  AVest          _  311 

Goodwright  v.  Downshii-e  268 

Gordon  v.  Ward  480 

Goodyear  v.  Vosbui'gh  581 

Gore  t'.  Ehvell  509 

Gorham  v.  Canton  108 

V.  Carroll  385,  452 

Gorrissen  v.  Perrin  292 

Gorton  v.  Dyson  518 

17.  HadseU  49 

Goslin  V.  Corry  584 

Gosling  V.  Birnie  207 

Goss  V.  Lord  Nugent  302 

V.  Tracy  168,  572 

i;.  Whatlington      116,  147,  149, 

187 

Gosset  V.  Howard  19,  38  a 

Gough  V.  Cecil  575 

I'.  Gough  57 

V.  St.  John  54 

Gould  V.  Barnes  69 

V.  Crawford  165 

V.  James  331 

V.  Jones  578 

V.  McCarty  560 

V.  Norfolk  Lead  Co.    277,  416, 

462 

V.  Oliver  205 

Goulding  v.  Clark  540 

Governor  u.  Bell  498 

V.  Daily  426 

V.  Gee  420 

V.  Jeffreys  498 

V.  McAffee  498 

Gower  v.  Emery  245 

Grace  v.  Adams  38  a 

Gracie  v.  Morris  558 

Grafton  Bank  v.  Moore  177 

Gragg  V.  Fiye  66 

Graham  v.  Anderson  6 

V.  Whitely  540 

Granger  v.  Warrington  237 

Grant  v.  Jackson  177,  204,  210 

V.  Maddox  292 

V.  McLachlin  541 

V.  Ridley  320 

V.  Thompson  440 

Grantham  ik  Canaan  39 

Graves  v.  Joice  535 

V.  Key  207,  212 

Gray  v.  Davis  501 

V.  Gardiner  46 

V.  Goodrich  108 

V.  Harper  280,  295 

V.  McLaughlin  102 

V.  Pahner  174,  177 


Gray  v.  Pentland  251 
V.  Pingry  531 
Grayson  v.  Atkinson  272 
Great  Falls  Co.  v.  Worcester          145 
Great  Northern  R.  R.  Co,  v.  Har- 
rison 287 
Greaves  v.  Hunter  581 
Greely  v.  Smith  532 
Green  v.  Brown  41 
V.  Caulk  436 
V.  Chelsea  570 
V.  Godfrey  276 
V.  Howard  288 
V.  Jones  392 
V.  New  River  Co.  394,  527 
V.  Pratt  118 
V.  Proude  509 
V.  Rugely  43,  488  a 
V.  Salmon  392 
V.  Sutton  356 
V.  Waller  5,  480 
Greene  v.  Clarke  532 
V.  Durfee  428 
Greenleaf  v.  Quincy  112 
Greenough  v.  Eccles  444 
V.  GaskeU   237,  239,  242, 
244 
V.  West  385 
Greenwood  v.  Curtis  83 
V.  Lowe  37 
Gregory  v.  Baugh  103 
V.  Dodge  420 
V.  Howard  192 
V.  Parker  185 
V.  Tavernor  437,  466 
V.  Thomas  65 
Grellier  v.  Neale  572 
Grenfell  v.  Girdleston  39 
Gresley  v.  Mouseley  38  a 
Greville  v.  Chapman  440 
Grey  v.  Washbiu-n  40 
V.  Young  102,  430 
Grierson  v.  Eyi-e  4 
Griffin  v.  Brown               342,  395,  539 
V.  Montgomery  R.  R.  Co.  113 
Griffin's  case  220 
Griffing  v.  Harris  385 
Griffith  V.  Davies  245 
V.  Williams  578 
Griffiths  V.  Hardenburg  297 
V.  WiUiams  27,  186 
Griffits  V.  Ivery                    .  580 
Grigg's  case  339,  340 
Grimes  v.  Kimball  558 
Grimwood  v.  Barrett  60 
Griswold  v.  Pitcairu  4 
Grobb  V.  Cushman  5 
Grote  V.  Grote  47 
Guernsey  v.  Carver  532 


xl 


INDEX  TO   CASES   CITED. 


Guidon  v.  Robson 

207 

Hall  V.  Houghton 

443 

Guild  V.  Lee 

179 

537 

V.  Manchester 

509 

Guild's  case      217,  219,  221 

222 

,223 

V.  Odber 

546 

Guinness  v.  Carroll 

546 

V.  Phelps 

569 

Gulick  V.  Loden 

33 

V.  Steamboat  Co. 

426 

Gully  V.  Grubbs 

26 

V.  White 

208 

Gunnison  v.  Gunnison 

310 

V.  Williams 

502 

,548 

Gunter  v.  Watson 

435 

Hallet  V.  Mears 

310 

Gurney  v.  Langlands 

580 

Hallett  V.  Cousens 

463 

Gurrw.  Rutton 

101 

Halliday  v.  Martinett 

116 

Gutterids^e  v.  Smith 

205 

Haly  V.  Lane 

207 

Guy  V.  Hall 

385 

Ham  V.  Ham 

5,  25 

V.  Sharp 

287 

,291 

Hamblin's  Succession 

550 

Gwinnett  v.  Phillips 

60,  66 

Hamer  v.  Sowerby 

559 

Gyles  V.  HiU 

508 

Hamilton  v.  Cutts 

180 

394 

V.  Desmoines  R.  R. 

440 

V.  Marsden 

572 

575 

H. 

V.  Minor 

145 

V.  People         440, 451 

461 

Habershon  v.  Troby 

249 

V.  Williams 

167 

,572 

Hacker  v.  Young 

484 

Hammatt  v.  Emerson 

113 

Hacket  v.  Callender        197, 

199 

207 

Hammick  v.  Bronson 

107 

V.  Martin 

190 

Hammon  v.  Huntley 

176 

Hackett  v.  King 

108 

Hammond  v.  Steward 

314 

Hackley  v.  Patrick 

112 

Hammond's  case              578, 

580 

581 

Hackman  v.  Fernie 

73^  76 

Hampshu-e  v.  Pierce 

291 

Haddow  v.  Parry 

116 

,147 

Hampton  v.  McConneU 

504 

Haddrick  v.  Raine 

49 

Hamson  v.  Barton 

280 

Hadduck  v.  Wilmarth 

385 

Hanbui-y  v.  Ella 

73 

Hadjo  V.  Gooden 

469 

Hancock  v.  Barrett 

548 

Hadley  v.  Carter 

108 

V.  Welsh 

531 

V.  Green 

532 

Handley  v.  Edwards 

402 

Hadrick  v.  Heslop 

357 

Hannaford  v.  Hunn 

532 

Haffelfinger  v.  Shutz 

564 

Hannay  v.  Stewart 

113 

Haganian  v.  Case 

118 

Hanover  (K.  of)  v.  Wheatley 

467, 

Hagedoorn  v.  AUnutt 

310 

554 

Hagedoru  v.  Reid 

116 

Hanover  R.  R.  Co.  v.  Cayle 

108 

Haig  V.  Newton 

437 

Hansard  v.  Robinson 

558 

Ilaigh  V.  Belcher 

52 

449 

Hanson  v.  Eustace 

37 

V.  Brooks 

485 

V.  Parker 

180 

Haile  v.  Palmer 

485 

493 

V.  Shackleton 

5 

Haines  i;.  Dennett 

385 

V.  Stetson 

281 

Haire  v.  Wilson 

18 

Harbold  v.  Kuster 

294 

Hale  V.  Ross 

489 

Hard  v.  Brown 

101 

V.  Russ 

567, 

568 

Harden  v.  Gordon 

212 

V.  Smith 

398 

Ilardenburg  v.  Cockroft 

440 

Hale's  Ex'rs  v.  Ard's  Ex'rs 

117 

Harding  v.  Carter 

208 

Haley  v.  Godfrey 

427 

V.  Greening 

36 

Halifax's  case 

40 

V.  Hale 

532 

Hall  V.  BaU 

84 

582 

V.  Mott 

385 

V.  Baylies 

392 

Hardman  v.  Wilcock 

207 

V.  Cazeuove 

285 

Hardy  v.  Merrill 

440 

r.  Cecil 

395 

401 

V.  The  State 

49 

V.  Fisher 

301 

Hare  v.  Munn 

76 

V.  Gettings 

145 

Harger  v.  Edmonds 

440 

V,  Glidden 

117 

Hargrave  v.  Everard 

38  a 

V.  Hale 

391 

V.  Hargrave     103, 

107 

166 

V.  Hill 

185 

Harlett  v.  Hewlett 

37 

V.  Hoddesdon 

552 

Harman  v.  Lesbrey 

391 

401 

INDEX  TO  CASES   CITED. 


3di 


Ilarman's  case 
Harmer  v.  Davis 
Harmon  v.  Arthur 
Harness  v.  Thompson 
Harnett  v.  Johnson 
Harper  v.  Bmrow 
V.  Gilbert 
Haniman  v.  Stowe 
Harrington  i^.  Fry 

V.  Lincoln     192,  M9,469 
Harris  v.  Forman  2Si  a 
V.  Harris  215 
V.  Holmes  51  a 
V.  Johnston  305 
V.  Mantle  52 
V.  Rayner  58 
V.  Rickett  285 
V.  Tippett      52,  423,  449,  459 
V.  Whitcomb  86 
V.  Wilson    177,  423,  425,  449 
Harris's  case  227 
Harrisburg  Bank  v.  Foster  385 
Harrison  v.  Barnby  61 
V.  Barton  282 
V.  Blades  147,  572 
V.  Courtauld  421 
V.  Creswick  528 
V.  Gordon  449 
V.  Middleton  437 
V.  Moore  96 
V.  Rowan         434,  445,  447 
V.  RusseU  54 
V.  South  35 
V.  VaUance  180,  190 
narrison's  case  79 
Hart  V.  Deamer  556 
V.  Hammett  282 
V.  Hart  38  a 
r.  Xewman  196,  209 
V.  Powell  108 
V.  AVilliams  116 
V.  Yunt  84 
Hart's  case  408 
Hartford  v.  Palmer  365 
Hartford  Bank  v.  Hart  332 
Hartford  Bridge  Co.  v.  Granger     192 
Hartford  Prot.   Ins.  Co.  v.  Har- 
mer 441 
Hartley  v.  Brooks  117 
V.  Manson  568  a 
V.  Willdnson  283 
Hartman  v.  Keystone  Ins.  Co.       441 
Hartness  v.  Thompson  197 
HartweU  v.  Root  40,  80 
Harvey  v.  Alexander  26 
V.  Broad  5 
V.  Coffin  392 
V.  Grabham  302 
V.  Mitchell  560 


225 

Harvey  v.  Richards 

528 

207 

V.  Thomas 

84 

427 

V.  Thorpe 

84,86 

356 

V.  Towers 

78 

81 

Harvey's  case 

231 

164 

Harwood  v.  Goodright 

37 

477 

V.  Keys 

180 

108 

V.  Mulry 

lis 

577 

V.  Sims 

134, 

135,  138 

Hasbrouck  i;.  Baker  96 

V.  Vandervort  335 
Haskill  V.  The  Commonwealth        79 

Haskins  v.  Warren  81  a 

Hassard  v.  Municipality  5 
Hastings  v.  Blue  HUl  Tm-npike 

Corporation  484 

Hatch  V.  Dennis  190 

V.  Hatch  568 

Hatfield  v.  Jameson  6 

V.  Thorp  341 

Hathaway  v.  Clark  20 

V.  HaskeU  176 

Hathorn  v.  King  440 

Hatton  V.  Robinson  238 

Hauberger  v.  Root  176 

Haughey  v.  Strickler  51  a 

Haven  v.  Brown  113,  437 

Havis  V.  Barkley  387 

Hawes  v.  Hatch  568 

V.  N.  E.  Ins.  Co.  441 

V.  Watson  207 

Hawk  V.  Freund  201 

Hawkesworth  v.  Showier        357,  407 

Hawkins  v.  Brown  322 

V.  Finlayson  394 

V.  Grimes  581 

V.  Howard  246 

v.  Lascomb  179 

r.  Ware  89 

Hawks  V.  Baker  371 

V.  Charlemont  52 

V.  Kennebec  6 

Haworth  v.  Bostock  39 

Haworth's  case  225 

Hayden  v.  Denslow  266 

V.  Inhab'ts  of  Madison     197 

Haydon's  case  293 

Hayes  v.  Kelley  197 

V.  Morse  122 

V.  Seaver  187 

Hayne  i'.  Maltby  25 

HajTies  V.  Rqwe  323 

V.  Rutter  108 

V.  Yomig  301 

Hays  V.  Richardson  422 

Hayslep  v.  Gymer  199 

Hayward  v.  Bath  498 

Hayward  Rubber  Co.  v.  Duncklee  189 

Ha/ard  v.  Loring  305 


xlii 


INDEX   TO   CASES    CITED. 


&    Provi- 


deuce  Raili-oad 

462 

Hazeldine  v.  Grove 

49 

Hazelton  v.  Union  Bank 

581 

Hazen  v.  Boston  &  Maine  R 

R. 

80, 
285 

Head  v.  McDonald 

539 

V.  Shaver 

172 

Heald  v.  Tiling 

440 

Healey  v.  Thatcher 

192 

Ilealy  u.  Thome 

45 

Heane  v.  Rogers 

204 

207 

Heard  v.  Wadhani 

303 

Hearn  v.  Tomlin 

25 

Heath  v.  HaU 

408 

V.  West 

55 

Heaton  v.  Findlay 

242 

Heckert  v.  Fegely 

358 

V.  Haine 

569 

Hedge  v.  Clapp 

462 

Heely  v.  Barnes 

421 

Heermance  v.  Vernoy 

3!(S 

Helmsley  v.  Loader 

196 

Hemenway  v.  Smith 

239 

Hemming  v.  English 

429 

V.  Parry 

73 

Hempstead  v.  Reed 

488 

489 

Henderson  v.  Anderson 

385 

V.  Cargill 

107 

V.  Henderson 

546 

V.  Jones 

469 

V.  Kenner 

532 

V.  Wild 

172 

174 

Hendrick  v.  Crowley 

304 

Hendrickson  v.  The  People 

225 

Henfrey  v.  Bromley 

506 

Henisler  v.  Freedman 

248 

Henkin  v.  Gerss 

253 

Henman  v.  Dickinson 

342 

564 

V.  Lester 

96 

449 

Hennell  v.  Lyon 

507 

512 

Hemy  v.  Adey 

514 

V.  Bishop 

569 

V.  Brown 

69 

V.  Cleland 

69 

V.  Lee 

484 

560 

V.  Leigh 

496 

560 

V.  Risk 

280 

Henshaw  r.  Davis 

118 

Henthorne  i'.  Doe 

21 

Hepburn  v.  Auld 

46 

Herbert  v.  Ashburner 

473 

V.  Tuckall 

110 

Hercules,  The 

495 

Herman  v.  Drijikwater 

348 

Herrick  v.  Malin 

564 

V.  Noble 

281 

Herring  v.  Boston  L-on  Co. 

288 

,  297 

V.  Clobei-y 

240 

Herring  t".  Levy  115,117 

Herschfield  i'.  Clarke  559 

Hervey  v.  Hervey  107 

Heward  v.  Shipley  384,  413 

Hewett  V.  Dement  284 

V.  Piggott  198 

Hewitt  V.  Prime  248 

Hewlett  V.  Cock  142,  144 

Heylings  v.  Hastings  112 

Hevwood  V.  Reed  101,  190,  469 

Hibbert  v.  Knight  241 
Hibblewhite  v.  McMorine    568,  568  a 

Hibsham  v.  Dulleban  550 

Hicks  V.  Person  581 

Higdoii  V.  Thomas  26 

Higgins  V.  Dellinger  197 

Higgs  V.  Dixon  569 

Higiiam  v.  Ridgway  116,  147,  149, 

150,  151 

Highfield  v.  Peake  507,  516 

Highland  Turnp.  Co.  v.  McKean  493 


Higley  v.  Bidwell 
Hildreth  v.  Maiiin 
HiU  V.  Barge 

V.  Buckminster 

V.  Crosby 

V.  Great  Western  Railway 

V.  Grigsby 

V.   Manchester   &    Salford 
Waterworks 

V.  North 

1-.  Lafayette  Ins.  Co. 

V.  Packard 
Hill's  case 
Hilliard  v.  Jennings 
Hills  V.  Barnes 

V.  London  Gas  Co. 
Hilt  V.  Campbell 
Hilts  V.  Colvin 
Hinde  v.  Vattier 
Hinkle  v.  Wanzer 
Hinman  v.  Brees 
Hinman's  case 
Hipes  IK  Cochi'an 
Hiscocks  V.  Hiscocks 
Hitchcock  V.  Tyson 
Hix  I'.  Whittemore 
Hizer  v.  State 
Hoare  v.  Croyton 
V.  Graham 
V.  Silverlock 
Ilobart  V.  Bartlett 
Hobbs  V.  Lowell 
V.  Parker 
Hocking  v.  Cooke 
Ilockless  V.  ]\litchell 
Hockley  v.  Lamb 
llodempyl  v.  Vingerhoed 
Hodgdon  v.  Wight 


145 
199 
272 
304 

17 
559 

43 

26 

101 

441 

488,  508 

65 

392 

564 

288 

58,  66 

84,  375 

21,  490 

260 

521 

227 

6 

289,  291 

205 

42 

6 

150,  181 

281 

5 

422 

207 

528 

5,  280 

427 

405 

112 

88 


INDEX   TO   CASES   CITED. 


xliii 


Hodge's  case 

34 

Hodges  V.  Bennett 

259 

V.  Holden 

75,  76 

V.  Horsfall 

288 

Hodgkinson  v.  Fletcher 

185 

V.  Willis 

512 

Hodgson  V.  ]\Ierest 

179 

Hodnett  v.  Forman 

572 

Hodsdon  V.  Wilkins 

395,  402 

Hodsou  V.  Marshall 

390 

I'.  Sharpe 

207 

Hoe  V.  Melthorpe 

518 

Hoffman  v.  Smith 

248 

Hoge  V.  Fisher 

440 

Hoggett  V.  Exley 

76 

Hoibrook  v.  Gay 

118 

V.  Jackson 

93 

V.  JMcBride 

74 

V.  Mix 

442 

V.  TuTell 

265 

Holcomb  V.  Cornish 

513 

V.  Holcomb 

365,  366 

Holcombe  r.  Hewson 

52 

Holden  V.  Hearn 

392 

Holdiiig  V.  EUiott          196,  282  a,  288 
V.  Pigott  294 
Holdsworth  v.    Mayor  of    Dart- 
mouth 444,  467 
HoUaday  v.  Littlepage  116,  120,  147 
Holland  v.  Cruft  529 
V.  Reves  466 
Hollaway  v.  Raikes  147 
HoUenback  v.  Fleming  569,  569  a 
HoUenbeck  v.  Shutts  281 
HoUingham  i-.  Head  52,  53 
Holman  v.  Burrow  6 
V.  KimbaU  239 
V.  King  486 
Holme  V.  Greene  174 
Holmes  v.  Anderson  449 


V.  Baddeley 
V.  Broughton 
V.  Doane 

240,  £ 

40  a 

43 

303 

V.  Love 

78 

V.  Pontin 

572 

V.  Remsen 

512 

Holsten  v.  Jumpson 
Holt  V.  Miers 

529, 

287 
562 

V.  Squire 

186, 

194 

Homan  v.  Thompson 
Home  V.  Lord  Bentinck 

250, 

75 
251 

V.  Mackenzie 

436, 

438 

Homer  v.  Brown 

530 

V.  WaUis  568,  572,  581 

Hone  V.  Mut.  Safety  Ins.  Co.         292 
HonejT\-ood  v.  Peacock  572 

Hood  V.  Reeve  182 

Hook  V.  Freund  201 

Hope  V.  Evans  200 


Hope  V.  Harman  568  a 

Hopewell  v.  De  Pinna  41 

Hopkins  v.  Banks  112 

V.  De  Graff enreid  575 

V.  Megquire  577 

V.  Neal  347 

V.  School  District  288 

Horan  v.  Weiler  37 

Hordiman  v.  Herbert  19 

Horford  v.  Wilson  584 

Home  V.  Smith  319 

Home  Tooke's  case  198 

Horry  District  v.  Hanion  564 

Hoskins  v.  Miller  519 

Hotchkiss  V.  Ger.  Ins.  Co.  469 

V.  Lyon  187 

Hotham  v.  East  India  Co.  304 

Houghton  V.  Koenig  97 

Houlditch  V.  Donegal  546 

Houliston  v.  Smyth  102 

Hovey  v.  The  Mill-Dam  Foundiy  333 

Hoviil  V.  Stephenson      167,  386,  418, 

435,  572 

How  V.  HaU  89 

Howard  v.  Braithwaite  384 

V.  Canfield  437 

V.  Chadbourne  392,  428 

V.  City  Fire  Ins.  Co.  449 

V.  Mitchell  531 

V.  OdeH  284 

V.  Peete  64 

V.  Smith  96,  203 

V.  Tucker  208 

Howe  V.  Howe  388 

V.  Peabody  565 

V.  Walker  281 

HoweU  V.  Lock  421 

V.  Richards  69 

V.  Thomas  73 

Howland  v.  Conway  462 

V.  Lenox  310 

V.  Sheriff,  &c.  394,  437 

V.  ^\\\\Qiis  394,  437 

Hoxie  V.  Wright  549 

Hoy  V.  Morris  239 

Hoyle  V.  Cornwallis  5 

Hoyt  V.  Hammekin  323 

t'.  Wildfire  389 

Hubbard  v.  Hubbard  77 

V.  Knous  205 

V.  Russell  84 

Hubbert  v.  Borden  281 

Hubbly  V.  Brown  891 ,  399 

Hubly  V.  Vanhorne  580 

Hudson  V.  Browne  81 

V.  Guestier  541 

17.  Harrison  197 

V.  Revett  568  a 

Hudson  Co.  v.  State  20 


xliv 


INDEX  TO   CASES   CITED. 


Iliiet  V.  Lemesurier 
Huff  V.  Bennett 
Hugh's  case 
Hughes  V.  Biddulph 
V.  Blake 
V.  Buckland 
V.  Budd 
V.  Cornelius 
V.  Hampton 
V.  Rogers 
Huidekoper  v.  Cotton 
Hull  V.  Blake  629, 

Humble  v.  Hunter 

V.  Mitchell 
Hume  V.  Scott 
Humphrey  v.  Burnside 

V.  Humphrey 
Humphreys  v.  Budd 

V.  Guillow 
V.  Miller 
Hunneman  v.  Fire  District 
Hunt  V.  Adams  281,  565, 

V.  Brigham 
V.  Hoit 
V.  Livermore 
V.  Lyle 
V.  Massey 
V.  Roglance 
Hunter  (The)  31 

Hunter  v.  Caldwell 
V.  King 
V.  Leashley 
Huntingford  v.  Massey 
Huntington  v.  American  Bank 

V.  Finch 
Hurd  V.  IMorijig 
Hurst  V.  Beach 
V.  Jones 
Hurst's  case  316, 

Hutcheon  v.  Mannington 
Hutchius  V.  Adams 

V.  The  State 
Hutchinson  v.  Bowker      49,  277, 

V.  Sinclair 
Hutton  V.  Warren 
Hyckman  v.  Shotbolt 
Hyde  v.  Middlesex  Co. 
Hyltou  V.  Brown 


493 

Imlay  v.  Rogers 

553 

166 

Imperial  Gas  Co.  v.  Clarke 

474 

82 

Imrie  v.  Castrique 

546 

204 

Ing  V.  Brown 

260 

530 

Inge  V.  Murphy 

488,  489 

49 

Ingraham  v.  Bockins 

117 

562 

V.  Hutchinson 

17 

5 

V.  State 

6 

118 

Ingram  v.  Dada 

426 

580 

V.  Lee 

89 

252 

Innes  v.  Campbell 

41 

542 

Innman  v.  Foster 

55 

281 

In  re  Richardson 

19 

267 

Sandilands 

38  a 

461 

Wellman 

19 

5 

Ins.  Co.  V.  Woodruff 

113 

54 

Inslee  v.  Prall 

118 

6 

Ireland  v.  Powell 

138 

564 

V.  Stiff 

463 

402 

Irish  Soc.  v.  Derry 

584 

275 

Irvine  v.  Stone 

66 

5G7 

Irving  V.  Living 

575 

174 

Irwin  V.  Reed 

163 

301 

V.  Shumaker 

356 

283 

Irwin's  case 

227 

505 

Isack  V.  Clarke 

144 

121 

Isbell  V.  N.  Y.  &  N.  Haven  R.  R. 

209 

Co. 

40 

,37 

Isham  V.  Gibbons 

514  a 

49 

Isler  V.  Dewey. 

469 

404 

Israel  v.  Benjamin 

205 

416 

V.  Clark 

210 

53 

Ivat  V.  Finch 

147,  189 

205 

Ives  V.  Niles 

118 

564 

Ivey  V.  Young 

73 

245 
296 
104 
318 
5 

61 
310 
280 

26 
294 

09 
109 
559 


I. 

lasigi  V.  Brown 
Icehour  v.  Martin 
Ide  V.  Stanton 
Ilderton  v.  Atkinson 
111.  Cen.  R.  R.  Co.  V. 
Illinois    Lis.    Co.    v. 
Co. 


477,  559 

319 

208 

391,416 

Sutton  102 

Marseilles 

430 


J. 

Jack  V.  Dougherty 
Jackson  v.  Bailey 
V.  Bard 
V.  Benson 
V.  Blanshan 
V.  Boneham 
V.  Brooks 
V.  Browner 
V.  Burtis 
V.  Burton 
V.  Chase 
V.  Christman 
V.  Cooley 
V.  Davis 
V.  Dobbin 
t'.  Fairbank 
V.  French 
V.  Frier 
r.  Galloway 
V.  Gould 


26 

164,  105 

109 

390 

21,  144,  570 

484 

389,  578 
103 

237,  241 
572 
265 

437,  570 

104 

21 

207 

112,  174 
239 
349 
427 
568 


INDEX  TO  CASES   CITED. 


xlv 


Jacksoii  v.  Gridley 
r.  Hesketh 
V.  Hogarth 
V.  Jacksoii 
V.  Jones 
V.  King 
V.  Kingsley 
V.  Kniffen 
V.  Lamb 


367,  369 
74,  75,  76 
389 
421 
559 
484 
571 
156 
144 


r.  LaiTOway       142,  144,  570 

V.  Lawson  164 

V.  Leek                  ■  443 

V.  Le  Grange  575 
V.  Luquere           21,  142,  144 

V.  Malin  566 

V.  Mann  319 

17,  Marsh  301 

V.  JMatsdorf  24 

V.  McCaU  45 

V.  McVey  241 

V.  Meyers  284 

V.  Miller  498 

V.  Mills  24 

V.  Murray  46 

V.  Osborne  564 

V.  Pesked  19 
V.  Phillips               581,  581  a 

V.  Pixley  207 

V.  Pratt  426 

V.  Reynolds  207 

V.  Robinson  519 

V.  Rumsey  167,  418 

V.  RusseU  104 

V.  Scissam  207 

V.  Seager  319 

V.  Smith  207 

V.  Spear  207 

V.  Sprague  301 

V.  Thomason  444,  462 

V.  Vail  84,  575 

V.  Yanderheyden  24 

V.  Van  Dusen  272 

V.  Varick  447 

V.  Waldron  84,  575 

V.  Williamson  252  a 

V.  Winchester  164 

V.  Wood  539 

V.  Wooley  174 

f,  Wright  24 
Jackson  d.  ]\Ici)onald  v.  McCall    145 

Jackson's  case  259 
Jacob  r.  Lindsay                90,  436,  439 

V.  United  States  83 

Jacobs  V.  Humphreys  180 

V.  Layboum  421 

V.  Whitcomb  102 

Jacobson  v.  Fountain  331,  428 

Jacock  V.  Gilliam  474,  484 

James  v.  Biou  37,  196 


James  v.  Brawn 

92 

V.  Hackley 

176 

V.  Platfield 

347 

V.  Phelps 

49 

V.  Salter 

74 

V.  Spaulding 

117 

V.  Trollop 

144 

V.  Walruth 

69 

V.  "SA'harton 

120 

Jameson  v.  Drinkald 

440 

Jansen  v.  Ostrander 

69 

J'Ansen  v.  Stuart 

55 

Janvrin  v.  Fogg 

462 

V.  Scammon 

451 

Jarboe  v.  Kepler 

462 

Jardine  v.  Sheridan 

192,  239 

Jarrett  v.  Leonard 

181 

Jasper  v.  Porter 

6 

Jay  V.  Carthage 

37 

Jeacock  v.  Faulkner 

288 

Jeans  v.  Fridenburg 

242 

Jeens  v.  Wheedon 

227,  582 

Jeffers  v.  Radcliife 

550 

Jefferson  Ins.  Co.  v.  Cotheal 

441 

Jeffreys  v.  Harris 

54 

V.  Walton 

304 

Jelf  V.  Oriel 

73 

Jenkins  v.  Davis 

133 

V.  Eldredge 

296  o 

V.  Phillips 

73 

Jenks's  case 

65 

Jenuer  v.  Joliffe  86,  96,  203,  521 

Jenney  v.  Rodman  207 

Jennings  v.  Whitaker  204 

Jermain  v.  Denniston  190 

Jessup  V.  Cook  164 

Jevans  v.  Han-idge  349 

Jewell  V.  JeweU  103,  107,  108 

Jewett  V.  Adams  394,  420 

V.  Torry  207 

Joannes  v.  Bennett  37 

John  V.  Curry  73 

Johnson  v.  Beardslee  174 

V.  Blackman  190,  353 

V.  Brailsford  273 

V.  Breedlove  118 

V.  Browning  352 

V.  Cunningham  409 

V.  Dalton  _   -^^ 

V.  Daverne  255,  577 

V.  D.  of  Llarlborough       564 

V.  Durant  219 

V.  Hacker  49  d 

V.  Howard  103 

V.  Johnson         248,  272,  30.') 

V.  Knight  167 

V.  Lawson  103 

V.  Lyford  582 

V.  McGruder  2G0 


xlvi 


ESTDEX   TO   CASES    CITED. 


Johnson  v.  Powers  165 

V.  Runnels  505 

r.  Sherwin  110 

V.  State  158 

V.  Thoroughgood  58 

V.  Ward  _  114,  481 

Johnston  v.  Caulkins  54 

V.  Cottingham  27,  532 

I'.  Haines  276 

V.  Jones        ,  '          484 

r.  Todd  103,  462 

Johnstone's  case  65 

Jolley  V.  Taylor  82,  89 

i\  Young  49 

Jones  V.  Barclay  304 

V.  Brinkley  572 

V.  Brooke  391,  401 

V.  Carrington  189 

V.  Church  190 

V.  De  Kay  118 

V.  Edwards  562 

V.  Flint  179,  271 

V.  FoxaU  192 

V.  Gale  6 

V.  Georgia  379 

V.  Herbert  174 

V.  Hoar  205 

V.  Jones  168 

V.  Kennedy  74 

V.  Lake  272 

V.  Lanier  452 

V.  Long  117 

V.  Mason  374,  572 

V.  McNiel  533 

V.  Moore  112 

V.  Morrell  197,  215 

V.  JNIuisbach  40 

V.  Newman  291 

V.  Overstreet  5 

V.  Perry  101 

V.  Phelps  569 

V.  Pitcher  494 

V.  Pugh  240 
V.  Randall      482,  491,  508,  511 

V.  Sasser  26 

V.  Stevens  55 

r.  Stroud  438 

V.  Tarleton  94 

V.  The  State  209,  303 

V.  TuberviUe  178 

V.  Tucker  49,  440 

V.  Vanzant  51  a 

V.  Ward  2G,  166 

V.  White  537 

V.  Whittier  190 

V.  Williams  53  a 

V.  Wood  165 

Jones's  case  225 

Jorau  V.  Ferrand  448 


Jordaine  v.  Lashbroke 
Jordan  v.  Fenno 

V.  Hubbard 
V.  Lewis 
V.  Osgood 
t;.  Stewart 
V.  Wilkins 
Jordan's  case 
Jory  V.  Orchard 
Joseph  V.  Bigelow 
Jourdain  v.  Sherman 
Joyce  V.  Maine  Ins.  Co. 
Judd  V.  Gibbs 
Judge,  &c.  V.  Briggs 
Judice  V.  Chretien 
Judson  V.  Blanchard 
Jumpertz  v.  People 

K 


385 

260 
185 
254  a,  471 
53 
564 
563 

102,  108 
561 
304 
418 
441 

171,  195 

503,  513,  518 

485 

349 

576 


Kaines  v.  Knightley 

281 

Kane  v.  Johnston 

79 

Kay  V.  Brookman 

575 

Kaye  v.  Waghorne 

301 

Kaywood  v.  Barnett 

103 

Kean  v.  Price 

489, 

505 

Keane  v.  Smallbone 

508  a 

Kearney  v.  Farell 

102 

Keating  v.  Rice 

304 

Keeling  v.  Ball 

84 

572 

Keene  i'.  Deardon 

46 

Keightly  v.  Birch 

394 

Keith  V.  Kibbe 

118 

V.  Lathrop 

576 

577 

V.  Wilson 

432 

Kell  V.  jSTainby 

207 

Kellenberger  v.  Sturtevani 

527  a 

Kelley  v.  People 

37 

199 

V.  Powlet 

288 

V.  Small 

185 

341 

Kello  V.  Maget 

573 

Kellogg  V.  Smith 

301 

Kellyy.  INIcGuire 

103 

Kelsey  v.  Bush 

201 

V.  llanmer            558,  571 

574 

Kelway  v.  Kelway 

237 

Kemble  v.  Lull 

294 

K  em  merer  v.  Edelman 

434 

Kemp  V.  King 

560 

Kempland  u/Macaulay 

181 

Kendall  v.  Powers 

513 

Kendrick  v.  State 

164 

,  165 

Kennedy  v.  Doyle 

115 

V.  Erie,      &c. 

Plank 

Road  Co. 

281 

V.  Niles 

356 

Kennet  v.  GreenwoUera 

392 

Kenney  r.  Jones 

46 

INDEX   TO   CISES    CITED. 


xlvii 


Kensington  r.  Tnglis  436,  437 

Kent  V.  Garvin  117 

V.  Lincoln 
Kern  v.   South   St.  Louis  ]Mut. 

Fire  Lis.  Co. 
Kerr  v.  Love 
Kerr's  case 

Kerrison  v.  Coatsworth 

Kerwin,  ex  parte 

Ketchingham  v.  State 

Key  V.  Dent 

V.  Shaw 

Kidder  v.  Blaisdell 

Cockburn 

Sanders 

Bennett 

.  Herr 

Huntington 

i\lorrel] 

Thompson 

Kimmel 

Howe 

r.  PurceU 

King  V.  Badeley 

V.  Chase 

i\  Donahoe 

V.  Hoare 

V.  Little 

V.  Lowry 

V.  Paddock 

V.  Robinson 

V.  Waring 

King  (The)  v.  Mashiter 

Kingham  v.  Robins 

Kingston  v.  Lesley 

Kingston  (Mayor  of)  i\  Horner  20,  45 

Kingston's  (Duchess  of)  case  19,  248, 

523,  581,  541 

Kinleside  v.  Harrison  440 

Kinnersley  v.  Wm.  Orpe  484,  523,  535 

Kinney  v.  Berran  322,  323 

V.  Farnsworth  145,  207 

V.  Flvnn  282,  577,  581 


Kidney  v. 
Kieran  v. 
Kilburn  v. 
Kilheffer  r 
Kimball  v. 


Kimmel  v. 
Kincaid  v. 


102 


441 

118 

229 

396 

568  a 

462 

523,  527 

101,  197 

6 

105 

207 

41,  108 

531 

173 

558 

360 

461 

37 

356 

288 

527,  528,  532 

581 

533 

20,  21 

356 

41 

66 

55 

280 

205 

493 


Kinsley  i'.  Robinson 
Kip  V.  Brigham 
Kirby  v.  Hickson 

V.  Sisson 
Kirk  V.  Eddowes 

V.  ^lowry 
Kirkland  ;;.  Smith 
Kirkpatrick  v.  Stingley 
Kirwan  v.  Cockburn 
Kissam  v.  Forrest 
Kitchen  v.  Campbell 

V.  Tyson 
Klein  v.  Landman 
Kline  t'.  Baker 
Knapp  V.  Maltby 
Knapp's  case 


385 

180,  539 

6 

558 

296 

166 

506 

539  n 

479 

445 

531,  533 

118 

35 

65 

567,  568  a 

219,  222,  231 


Knight  V.  Clements  564 

V.  Dauler  509 

V.  Howe  461 

V.  Marquis  of  "Waterford  150, 

561 

V.  Martin  571 

V.  Packard  385 

Knott  V.  Smith  319 

Knowles  v.  People  461 

Knox  r.  Jenks  46 

V.  Silloway  571 

V.  Waldoborough  529 

Koch  V.  HoweU  117 

Kohn  V.  Marsh  27,  206 

Kraft  V.  Wickey  544 

Kreise  v.  Neason  96 

Krider  v.  Lafferty  279 

Kuhtman  v.  Brown  323 

Km-tz  V.  Hibner  290 


L. 


La  Caygas  v.  Larionda 

479 

Lacon  v.  Higgins 

75,76 

Lacy  V.  McNeal 

112 

Ladd  V.  Blunt 

501 

Lade  v.  Holford 

46 

Lady  Lawley's  case 

343 

Laing  v.  Barclay 

246 

Lainson  i'.  Tremere 

22 

Lake  v.  Aubui-n 

420 

V.  King 

6 

V.  IMuniford 

51a 

Lamb  v.  Hart 

118 

V.  Lamb 

289 

Lamb's  case 

90,  215,  228 

Lambert  v.  Hale 

81 

Lambeth  v.  Vawter 

112 

Lamey  v.  Bishop 

73 

Lampon  v.  Corke 

26,  212 

Lamprey  v.  Nudd 

532 

Lampton  v.  Haggard 

5 

Lanauze  v.  Palmer 

87 

Lancaster  v.  Lane 

513 

V.  Whitehill 

581 

Lancum  v.  LoveU 

139 

Lander  v.  Seaver 

54 

Landsberger  v.  Gorham 

239 

Lane  i'.  Chandler 

172 

V.  Cole 

319 

V.  Crombie 

78 

V.  Harrison 

530 

Lane's  case 

6 

Lang  V.  Gale 

49 

V.  Phillips 

19 

V.  Raine 

572 

Langdon  v.  Goddard 

550 

V.  Langdon 

279,  305 

xlviii 


INDEX  TO   CASES    CITED. 


Langdon  v.  Young 
Langhorn  v.  AUnutt 
Langley  v.  Fisher 

V.  Lord  Oxford 
Lansdowne  v.  Lansdowne 

Lansing  v.  McKillip  68 
Lansingburg  (Bank  of)  v.  Crary     271 

Lapham  v.  Whipple  284 

Larbalestier  v.  Clark  391,  398 

Lamed  v.  Buffington  55 

Larry  v.  Sherburne  199 

Latham  v.  Kennistou  177,  395 

Lathrop  v.  Blake  297 

V.  Muzzy  397 

V.  Stuart  6,  19 

Latkow  V.  Earner  556 

Lattimore  t'.  Harsen  303 
Laughlin  v.  Ch.  &  N.  W.  R.  R. 

Co.  48 

V.  The  Stat©  102 

Law  V.  Law  322 

V.  Merrills  200 

V.  Scott  251 

Lawdon  v.  Lawdon  435 

Lawes  v.  Reed  436 

Lawless  v.  Queale  96 

Lawrence  v.  Barker  443,  449 

V.  CampbeU  240 

V.  Dole  302 

V.  Houghton  371 

V.  Hunt  531 

V.  Ins.  Co.  559 

V.  Minturn  38 

V.  Thatcher  113 

Lawson  V.  State  216 

V.  Sweeney  37 

Lawton  v.  Chase  53 

V.  Kittredge  260 

Laxton  v.  Reynolds  559 

Layer's  case  90,  228,  461 

Lea  V.  Polk  County  Copper  Co.        40 

Leach  v.  Armitage  75 

V.  Simpson  161,  227 

V.  Thomas  390 

Leader  v.  Barry  107 

Leake  v.  INIarquis  of  Westmeath    511 

Learned  v.  Bryant  207 

Leathe  v.  Bullard  302 

Leathes  v.  Newith  138 

LeBaron  v.  Crombie  163 

Lechmere  v.  Fletcher  539  a 

Ledford  v.  Vandyke  565 

Ledgard  v.  Thompson  569  a 

Lee  V.  Alexander  566 

V.  BirreU  248 

V.  Dick  281 

V.  Gansell  372,  375 

V.  Howard,  &c.  Co.  281 

V.  Kilbum  101 


488  a 

Lee  V.  Meecock 

508 

113 

V.  Pain 

261 

341 

Lee's  case 

449, 461 

186 

Leeds  v.  Cook 

37,  561 

288 

V.  Lancashire 

283 

V.  Marine  Insurance  Co.  of 

Alexandria ,  178 

Lees  V.  Hoffstadt  81 

V.  Smith  430 

Lefavor  v.  Yandes  112 

Lefebure  v.  Worden  117 

Le  Fevi-e  v.  Le  Fevre  302 

Leffers  v.  De  Mott  395 

Leggatt  V.  Cooper  205 

V.  ToUervey  254  a,  471 

Legge  V.  Boyd  73 

V.  Edwards             .  179 

Leggett  V.  Boyd  430 

Legh  V.  Legh  173 

Lehan  v.  Good  632 

Leicester  (E.  of)  v.  "Walter  55 

Leideman  v.  Schultz  280 

Leigh  V.  Leigh  288 

Leighton  v.  Perkins  428 

Leke's  case  51,  56,  60 

Lemaine  v.  Stanley  272 

Lemere  v.  Elliot  38 

Lench  v.  Lench  200,  214,  550 

Leonard  v.  Allen  55,  440 

V.  Leonard  550 

V.  Morrill  301 

V.  Vredenburg  268 

Leport  V.  Todd  41 

Lesher  v.  Levan  572 

Lesley  v.   Hudson  River   R.   R. 

Co.  113 

Lester  v.  Jenkins  521 

Lethulier's  case  292 

Levers  v.  Van  Buskirk  244 

Levi  V.  Milne  49 

Levy  V.  Cadet  112 

V.  Essex  400 

V.  Merrill  205 

V.  Pope  245 

V.  State  5,481 

Lewes'  Trusts  41 

Lewis  V.  Brewster  304 

V.  Clerges  164 

V.  Gray  284  a 

V.  Hogdon  420,  461 

V.  Kramer  116 

V.  Marshall  484 

V.  Payn  566,  568 

V.  Peake  397 

V.  Sapio  577 

Ley  V.  Ballard  572 

Leylield's  (Dr.)  case  568 

Lichtenhein  v.  Boston  &  P.  R.  R. 

Co.  292 


INDEX   TO   CASES   CITED. 


xlix 


Lightfoot  V.  Cameron  316 

Lightnor  v.  Wike  163,  437 

Like  V.  Howe  196,  204,  207 

Lilly  V.  Kitzmiller  429 

Lincoln  v.  Battelle  488 

Lindauer  v.  Cumrainga  284 

Lindenberger  v.  Beal  40 

Lindley  v.  Lacey  284 

Lindsay  v.  Williams  6 

Lindsey  v.  Attorney-General  6 

Linfield  v.  Old  Col.  R.  R.  Corp.    323 

Lingan  v.  Henderson  26 

Linn  v.  Buckingham  569 

Linscott  V.  Trask  34 

Linsley  v.  Lovely  305, 445 

Linton  v.  Gilliam  479 

Lipscombe  v.  Holmes  195,  205 

Lister  v.  Ferryman  49 

V.  Priestley  195 

V.  Smith  289 

Little  V.  Keon  386 

V.  Larrabee  252  a 

V.  Libby  109 

V.  Thompson  78 

Little's  case  108 

Littlefield  v.  Portland  398 

V.  Rice  333 

V.  Story  173 

Littlehale  v.  Dix  323 

Littler  v.  Holland  302 

Livermore  v.  Aldrich  26,  296 

V.  Herschell  532 

Livett  r.  Wilson  46 

Livingston  v.  Bishop  533 

V.  Cox  166 

V.  Kingstead  365 

V.  Livingston  46 

V.  Tenbroeck  293 

Llewellyn  v.  Winck worth  53 

Lloyd  V.  Lynch  212 

V.  Passingham  460 

V.  Sandiland  38 

V.  SpiUett  266 

V.  Willan  27,  184 

V.  Williams  358 

Lobb  V.  Stanley  285 

Lochlibo  (The)  443,  444 

Lock  V.  Winston  527 

Locke  V.  Norborne  536 

Lockhart  v.  White  35 

Lockhart's  case  231 

liOckwood  I'.  Lockwood  440  b 

V.  Smith  176 

r.  Sturdevant  24 

Lodge  V.  Phipher  580 

V.  Pritchard  119 

Logan  V.  The  State  158 

Lohman  v.  The  People  455 

Lombardo  v.  Ferguson  561 

VOL.    I. 


London  v.  Lynn  493 

Lonergan  f.  The  Royal  Ex.  Ass.    310 

V.  Whitehead  118 

Long  V.  Baillie  167 

I'.  Barrett  53 

V.  Colton  145 

V.  Davis  163 

V.  Hitchcock  463 

V.  Lamkin  450 

Long's  case  217,  220 

Longenecker  v.    Hyde  116,   120, 

187 
Look  u.  Bradley  331,405 
Loomis  V.  Bedell  571 
V.  Green  37,  532 
V.  Jackson  30 1 
V.  Loomis  112 
V.  W^adhams      96  a,  171,  203 
Lopes  r.  De  Tastet  58,  64 
Lord  V.  Bigelow  23 
V.  Colvin  437 
V.  ]\[oore  323 
Lord  Feversham  v.  Emerson  22 
Lord  Gosford  v.  Robb  96 
Lord  Milton  v.  Edgeworth  302 
Lord  Talbot  v.  Cusack  438 
Loring  v.  Xorton  301 
V.  Steineman  41 
Loring  et  al.  v.  Brackett  174 
Lorton,  Viscount,  v.  E.  of  Kings- 
ton 551 
Losse  V.  Losse  126 
Lothrop  V.  Blake  489 
Loud  V.  Merrill  40 
Louisiana  State  Bank  v.  Martin    416 
Louisiana  St.  Lottery  v.  Richeuk  480 
Louisiana  State  of,  ex  rel.  Hatch 

V.  City  Bank  of  X.  Orleans       474 

Loveridge  v.  Botham  212 

Low  V.  C.  &  P.  R.  R.  440 

V.  MitcheU  54,  451 

r.  Perkins  175 

Low's  case  252 

Lowber  v.  Shaw  399,  416 

Lowe  V.  Boteler  174 

V.  JoUfee         ^  384, 443 

V.  Lord  Huntingtower  301 

V.  Peers  19 

Lowell  V.  Daniels  24 

Lower  v.  Winters  58 

Lowry  v.  Cady  84 

Loyd  I'.  Freshfield  "            248 

t'.  Stretton  392 

Lubbock  V.  Tribe  558 

Lucas  V.  Bristow  280,  282 

V.  De  La  Cour  177,  281 

V,  Groning  230 

V.  Ladew  43 

V.  Nockela  69 


INDEX  TO   CASES   CITED. 


Luce  V.  Dorchester  Mut.  Fire  Ins. 

Co. 

441 

Ludlam  ex  d.  Hunt 

84 

Lufkin  V.  Haskell 

331 

405 

Lumley  v.  Gye 

320 

Lund  V.  Tyngsborough 

108 

,124 

Limiss  V.  Rowe 

422 

Lush  V.  Druse 

301 

Luttrell  V.  Ileynell            163 

,469 

,533 

Lygon  V.  Stutt 

142 

Lyman  v.  Lyman 

207 

521 

V.  Philadelphia 

461 

V.  State  Ins.  Co. 

441 

Lynch  v.  Benton 

306 

V.  Gierke 

484 

V.  Commonwealth 

81c 

V.  McHugo 

118 

Lynde  v.  Judd 

508 

Lyon  V.  Ely 

323 

V.  Home 

38  a 

V.  Lyman 

580, 

581 

V.  Miller 

281 

V.  Reed 

265 

Lyons  v.  Gregory 

84 

M. 


MaberleyiJ.  Robins 

6 

Maby  v.  Shepherd 

69 

Macbride  v.  Macbride     451 

456, 458 

Macdonald  r.  Longbottom 

288 

Machel  V.  Winter 

288 

Mackenzie  v.  Yeo 

244 

311 

Maddison  v.  Xutall 

189 

Maddox  v.  Sullivan 

260 

381 

Magee  v.  Scott 

34 

513 

Magennis  v.  MacCulIogh 

265 

Magill  V.  Kauffman 

163 

332 

Magnay  v.  Knight 

87 

Magoun  v.  N.  E.  Ins.  Co. 

541 

Mahan  v.  McGrady 

569 

Mahurin  v.  Bickford 

505 

Main  v.  Xewson 

409 

423 

Maine  v.  Harper 

117 

Maine  Stage  Co.  v.  Longley 

430 

Mainwaring  v.  Mytton 

401 

Maitland  (C  Cit.  Nat.  Bank 

469 

Major  1'.  State 

6 

Makepeace  v.  Bancroft 

301 

Malaun  v.  Ammon 

156 

Malcom  v.  Scott 

171 

Malcomson  v.  C!  lay  ton 

51 

V.  O'Dea 

143 

Malin  V.  INIalin 

200 

Malone  v.  Bartley 

501 

v.  B.  &  W.  R.  R.  Co. 

38  a 

Moloney  f.  Piper 

458 

Malony's  case  227 

Malpas  V.  Clements  40 

Maltby  v.  Christie  194 

Malton  V.  Nesbitt  440 

Manby  v.  Curtis  142,  155 
Manchester  Bank  v.  Moore  346,  356 
Manchester  Iron  Manuf.  Co.  v. 

Sweeting  418 

Manchester  Mills  (The  case  of)      139 

Manchester  (The)  113 

MandeviUe  v.  Welch  172, 173 

V.  Wilson  73 

Mann  v.  Godbold  97 

V.  Locke  112 

V.  Mann  296 

V.  Pearson  301 

Manners  v.  Postan  569 

Mannifold  v.  Pennington  72 

Manning  v.  Lechmere  147 

Mant  V.  Mainwaring  353,  356 

IMany  v.  Jagger  190 

Marbury  v.  Madison  251 

March  r.  Commonwealth  6 

Marcy  v.  Stone  109 

V.  Barnes  581 

Marianski  /'.  Cairns  197 

Maria  Das  Dorias  493 

Marine  Ins.  Co.  v.  Hodgson  73 

Mariner  v.  Dyer  349 

V.  Saunders  558 

Markey  v.  Mut.   Ben.   Life  Ins. 

Co.  320 

Markham  v.  Gonaston  568 

Marks  V.  Lahee        115,  116,  1.50,  152 

]\Iarland  v.  Jefferson  392,  402 

Marquand  v.  Webb  395 

Marriage  v.  Lawrence  484,  493 

Marsden  v.  Stanfield  331 

Marsh  v.  Collnet  484,  570 

V.  Davis  110 

V.  Gold  192 

V.  Howe  239 

V.  Jones  165 

V.  Keith  246 

V.  Pier  531 

Marshall  v.  Baker  303,  304 

V.  Cliif  186,  194 

v.  Ciougler  566,  568 

V.  Lynn  302,  304 

V.  Thraikill  395 

^larsliall's  appeal  287 

^Marston  v.  Downs  241 

V.  Ilobbs  24 

Martin  v.  Farnham  450 

V.  (Jood  437 

V.  Guuby  484 

V.  Horrell  416 

r.  K  el  ley  397 

V.  Macniire  681 


INDEX  TO   CASES    CITED. 


Martin  v.  IMartin  6 

V.  NicoUs  5i6 

V.  Pavne  4S9 

V.  Root  112,  174 

V.  Travellers  Ins.  Co.  435 

Martin's  case  65 

Llartindale  v.  Follett  568 

Martinean  v.  Woodland  416,  420 

Martinstein  v.  His  Creditors  118 

Marvin  i\  Richmond  192 

Marx  V.  People  449 

Mary  Grigg's  case  '       345 

Mary  Stewart  (The)  40 

Mary  (The)  18 

Mash  V.  Denshana  73 

V.  Smith  260,  359 

Mason  v.  Mason  30 

Masternian  v.  Judson  73 

Masters  v.  Abraham  114 

V.  Dra\ix)n  392 

V.  Miller  565,  566,  568  a 

Mather  v.  Clark  349 

V.  Goddard  87 

V.  Trinity  Church  45 

Mathes  v.  Robinson  118 

Mathews  v.  Coalter  564 

V.  Haydon  416 

V.  Houghton  513 

V.  INIarchant  429 

V.  Smith  392 

Matthew  v.  Osborne  22 

Matthews  v.  Colburn  164 

Matthews'  estate  239 

Mattocks  V.  Lyman  197,  201 

V.  Wheaton  310 

Maugham  v.  Hubbard  90,  436,  437 

Mauran  v.  Lamb  330,  353,  452 

Mawson  v.  Hartsink  461 

May  V.  Babcock  305 

V.  Brown  63 

V.  Taylor  180 

Mayer  v.  Sefton  93 

Mayfield  v.  AVadley  271 

Mayhew  v.  Gay  Head  275 

V.  Thayer  449 

Mayley  v.  Shattuck  543 

Mayor  v.  Harwood  480 

V.  Johnson  558 

Mayor  of  Carmathen  v.  Lewis         73 

Colchester  v.  Lewis         333 

Doncaster  v.  Day  163 

Soutliampton  v.  Graves  474 

McAdams  v.  Stilwell  104 

McAleer  v.  Horsley  469 

McArthm-  v.  Hurlburt  443 

McBraine  v.  Fortune  417 

McBride  v.  Watts  197 

McCance  v.  Lon.  &  N.  W.  R.  R. 

Co.  208 


McCann  v.  The  State  215 

McCarty  v.  Leary  469 

McClane  v.  White  296  a 

McClenkan  v.  McTkliUan         199,  201 

McClurg  V.  Wright  382 

McCorkle  v.  Binns  581 

McCormick  v.  Garnett  486 

McCraw  v.  Gentry  572 

McCrea  v.  Purmort  26 

McCuilock  V.  Tyson  392 

McCully  V.  Malcolm  352 

McCuUy's  case  65 

McCutcheon  t'.McCutcheon  461 

McDaniel  v.  Hughes  542 

McDonald  v.  Clu'istie  440 

V.  Evans  463 

V.  Longbotham  282 

V.  Rainor  530 

V.  Rooke  49 

V.  Savoy  55 

McDonnell  v.  State  49 

McDowell  V.  Langdon  532 

V.  Stimpson  517 

McElmoyle  v.  Cohen  548 

McFadden  v.  Kingsbury  89 

V.  Murdock  53 

McFarland  v.  Shaw  156 

^IcGahey  v.  Allston  82,  92,  187 

McGee  v.  Prouty  281 

V.  Scott  41 

McGerry  v.  People  331 

McGill  V.  Rowand  348 

McGrath  v.  Sea,grave  513 

McGregor  v.  Keily  40 

McGuire  v.  Maloney  338 

V.  Sayward  507 

McGuire's  case  82 

McGunagle  v.  Thornton  416 

Mcllroy  v.  Mcllroy  430 

Mclntire  v.  Oliver  112,  174 

Mclntyre  v.  IMancius  451 

V.  People  363 

Mclver  v.  Humble  356,  494 

V.  Walker  301 

McKavlin  v.  Bresslin  474 

McKee  v.  Hicks  568  a 

V.  Nelson  440 

McKelvy  v.  De  Wolfe  323 

McKenire  v.  Fraser  21,  144,  570 

McKenney  v.  Dingley  53 

McKeone  v.  Barnes  577 

McKinney  i'.  Neil  462 

McKinnon  v.  Bliss  5 

McKnight  v.  Lewis  352 

McKonkey  v.  Gaylord  577 

INIcLanathan  v.  Patten  190 

McLean  v.  Hertzog  89 

V.  State  159,  432 

McLellan  v.  Crofton  118 


lii 


INDEX  TO   CASES   CITED. 


McLellan  v.  Cumberland  Bauk      275 

V.  Longfellow  239 

V.  Ilichardson  252 

McMahon  v.  Burchell  171 

V.  Lennard  40 

McMicken  v.  Beaucliamp  504 

V.  Connnonwealth  275 

McMinn  v.  Whelan  38 

McXaug-hten's  case  440 

McNeil  V.  Philip  207 

Ex  parte  316 

McQueen  v.   Great  West.  R.  R. 

Co.  34 

McRae  v.  Lilly  54 

McTyer  v.  Steele  305 

Mc Williams  v.  Nisby  24 

Mead  v.  Boston  537 

V.  McGraw  49,  461 

V.  Robinson  413 

Meade  v.  McDowell  187 

V.  Smith  252  a 

Meadows  v.  Meadows  268 

Meagoe  v.  Simmons  436,  449 

Meath  (Bp.  of)  v.  Ld,  Belfield      137, 

138 
Meath  (Bp.  of)  v.    Marquis    of 

Winchester  142,  1.54,  240 

Mechanics'  Bank  of  Alexandria 

V.  Bank  of  Columbia  112 

Medomak  Bank  v.  Curtis  303 

Meeker  v.  Jackson  349 

Meekins  v.  Smith  316 

Meike  v.  St.  Sav.  Inst.  564 

Melcher  v.  Flanders  569 

Melen  v.  Andrews  197,  199,  233 

Melhinch  v.  Collier  51  a,  53,  444 

Mellish  V.  Rawdon  49 

V.  Richardson  73 

Mellville's  (Ld.)  case     6,  65,  234,  482 
Melvin  v.  Whiting  17,  164,  310 

Mercer  v.  Sparks  34 

V.  AVhall  76 

V.  Wise  207 

Merchants'  Bank  v.  Cooke  332 

1'.  Spicer  430 

Meredith  v.  Footner  185 

Meriam  v.  Harsen  293 

Merle  v.  More  243 

Merriam  v.  Hartford   &   N.   H. 

R.  R.  Co.  329 

V.  Ithaca  and   Oswego 

Raih-oad  Co.  437 

V.  Langdon  73 

V.  Middlesex  Ins.  Co.      441 

Mon-ifield  v.  Rohbins  489 

Merrill  v.  Blodgett  294 

Merritt  v.  'I'hunipson  41 

Mersey   &   Elwell   Nav.    Co.    v. 

Do  iglas  62 


Mertens  v.  Xottebohms  352 

Meserve  v.  Hicks  501 

Mestayer  v.  Biggs  284 

Metcalf'  V.  Van  Benthuysen  558 

Metropolis     (Bank    of  the)    v. 

Jones  385 

Metters  v.  Brown  34,  179 

Metzger's  case  552 

Metzner  v.  Bolton  66 

Mevey  v.  Matthews  356 

Mexico  &  S.  A.  Co.  in  re  451 

Meyer  j).  Beardsley  276 

V.  Huncke  565 

Meynell's  case  221 

Michaels  v.  Shaw  521 

V.  Williams  49 

Michener  v.  Lloyd  86 

Mickey  v.  Burlington  Ins.  Co.        462 

Middlesex's  (Sheriff  of)  case  6 

Middleton  v.  Brewer  205 

V.  Mass  142,  144 

V.  Melton      116,  120,  147, 

150,  153,  187 

Middletown    Savings     Bank    v. 

Bates  333 

Mifflin  V.  Bingham  118 

Milbourn  v.  Ewart  286 

Miles  V.  Dennis  179 

V.  McCullough  '           316 

V.  O'Hara  165,  166 

V.  Sheward  51 

Milford  V.  Worcester  484 

Millay  v.  Butts  34 

Miller  v.  Baker  271 

V.  Bingham  190 

V.  Covert  532 

V.  Falconer  396,  417 

V.  Gilleland  568,  568  a 

V.  Goodwin  304 

V.  Hale  513 

V.  Irvine  268 

V.  Mariners'  Ch.  95,  333,  422 

V.  McQuerry  6 

V.  Mut.  Ben.  Life  Ins.  Co.    441 

V.  Russell  163 

V.  Smith  450 

V.  Stevens  280 

V.  Travers     288,  289,  290,  291, 

297,  301 

V.  Williams  205 

Miller's  case  440 

JMilliken  v.  Coombs  269 

V.  ^Martin  564 

Millman  v.  Tucker  457 

Mills  V.  Barber  74 

V.  Duryee  504 

V.  Gore  361 

t;.  Oddy  75,  237,  241 

V.  Twist  572 


INDEX  TO  CASES   CITED. 


liii 


MiUs  t'.  Wyman  304 

Milne  v.  Leisler  108 

Milward  v.  Forbes  193 

V.  Hallett  416 

iMilword  v.  Ingram  302 

Mima  Queen  v.  Hepbm-n  124 

Minet  v.  Gibson  53 

V.  Morgan  240 

Minns  v.  Smith  463 
!Minor  v.   Mechanics'    Bank    of 

Alexandria  356 
V.  Tillotson_              82,  83,  84 

Minter  v.  Crommelin  40 

Mints  V.  BethU  93 

Mintm-u's  case  65 

jMish  r.  Wood  440 

Mishler  v.  Baumgardner  386 

Mitchell  V.  Belknap  119 

V.  Clark  118 

V.  Kingman  284 

V.  Mitchell  421 

V.  Sellman  468 

Mitchum  r.  State  108 

Mobley  v.  Hamit  461 

Mockbee  v.  Gardiner  3j8 

Modawell  v.  Holmes  5 

Moffitt  V.  The  State  363 

Mohawk  Bank  v.  Atwater  421 

MoiUett  V.  Powell  73 

Moises  V.  Thornton  58,  195 

MoUett  V.  Wackerbarth  568 

Molton  V.  Harris  87 

Molyneanx  v.  Collier  192 

Iklonday  v.  State  108 
Monktou  V.  Att'y-Gen.  103, 104,  105, 

131,  134,  135 

Monroe  (Bank  of)  v.  Culver  115 

V.  Field  113 

Monroe  v.  Twistleton  254,  337 
Moutee  v.  The  Commonwealth         49 

Montgomery  i;.  Ohio  165 

V.  Pickering  240 

V.  Richardson  205 
V.  The  State    158,  161  a 

Moody  V.  King  356 

V.  RoweU    445,  447,  448,  577, 
580,  581 

Mooers  v.  Bunker  38,  103 

Mooney  v.  Kennet  ^5 

Moons  V.  De  Bernales  550 

Moore  v.  Conn.  River  R.  R.  Co.    113 

V.  Griffin  405 

V.  Hitchcock  96 

V.  King  272 

V.  Moore  266 

V.  Pearson  163 

V.  People  450,  455 

V.  Terrell  240 

Moore's  case  227,  484 


Moorehouse  v.  Xewton  118 

Moorhouse  v.  De  Passou  421 

Moorish  v.  Foote  394^  396 

Mordecai  v.  Beal  37,  84 

More  V.  Salter  568 

V.  Smith  199 

V.  Watts  533 

Moreton's  case  533 

Morewood  v.  Wood  58,  128, 130,  136, 

137,  145,  578 

Morgan  v.  Baker  532 

V.  Brydges  445,  447 

V.  Frees  449 

V.  Griffith  284 

V.  Mark  382 

V.  Morgan  101 

V.  Thorne  523 

Moriarty  v.  Lon.  C.  &  D.  R.  R. 

Co.  37,196 

Morrell  v.  Dickey  544 

Morrill  v.  Foster  104 

Morris  v.  Bethell  53 

V.  Briggs  117 

V.  Bufdett  197 

V.  Daubigny  409 

V.  Davis  28 

V.  Hanner  497 

V.  Hauser  562 

V.  Keyes  532 

V.  Lotan  76 

V.  MiUer  209 

V.  Nixon  178 

V.  Pugh  521 

V.  Thornton  426 

V.  Vanderen  564 

V.  Wadsworth  573 

Morrison  v.  Kelley  471 

V.  Lennard  3Glo 

V.  Tm'nour  272 

V.  Woolson  19 

Iklorrissey  v.  Ingham  102 

Morse  v.  Conn.  R.  R.  Co.  114 

V.  Potter  118 

V.  Royall  174 

V.  Shattuck  26 

V.  Weymouth        277,  288,  298 

Morss  V.  Morss  364 

Mortimer  v.  McCallan     94,  113,  474, 

584 

V.  Mortimer  215 

Morton  v.  Chandler         275,  284,  474 

V.  Penny                 .  66 

V.  Webster  485 

Moscati  V.  Law^son  409 

Mosely  v.  Davis       130,  134,  135,  138 

17.  Hanford  281 

V.  Martin  290 

V.  Mastou  5 

Mosey 's  case  231 


liV 


INDEX  TO  CASES   CITED. 


Hosier's  case 
Mosley  v.  Massey 
Mossman  v.  Forest 
Mostyn  v.  Fabrigas 
Mott  V.  Doughty 

V.  Hicks 
Mount  V.  Bogert 
V.  Larkius 


301 

6 

49,  320,  488 

572,  575 

423 

192 

49 


Mountstephen  v.  Brooke  191 

Muldowney  v.  111.  Central  R.  R.    440 

MuUer  v.  Morris  489 

Mulvy  V.  Mohawk  Valley  Ins.  Co.  441 

Mumford  v.  Gothing  282 

Munderson  v.  Reeve  174 

Munro  v.  De  Chemant  27,  207 

Munroe  v.  Cooper  81  a 

V.  Perkins  303 

Mitrdock  v.  Union  Bank  38 

Murphy  v.  Commonwealth  254,  341, 

448 

V.  Orr  41 

Murray,  in  re  30 

V.  Buchanan  558 

V.  Carrett  558 

V.  Coster  192 

V.  Judah  430 

V.  Lord  Stair  284 

V.  Marsh  430 

V.  ShadweU  361 

V.  Toland  197 

Mussey  v.  Beecher  114 

Mussou  V.  Fales  379 

Mut.  Ben.  L.  Ins.  Co.  v.  Tisdale  550 

Myers  v.  Baker  200 

V.  Toscan  581 

Myrick  v.  Dane  261 


N. 

Nash  V.  Gilkieson  54,  55 

V.  Van  Swearingen  452 

Nason  v.  Thatcher  333 

Natchbolt  v.  Porter  2(55 
National  Bank  of  St.  Charles  v. 

De  Bernales  203 

Naylor  v.  Semmes  452 

Neal  V.  Wilding  104 

Neale  v.  Fry  497 

V.  Parkin  197 

Nealley  v.  Greenough  561 

Needham  v.  Law  333 

V.  Smith  421 

Neelson  v.  Sanborn  268 

Neil  V.  Cheves  301 

V.  Neil  272 

Neile  v.  Jakle  197 

NeiLson  v.  McDonald  361 

Nelius  V.  Brickell  572 


Nellis  V.  McCarn 

440 

Nelson  v.  Ewell 

319 

V.  Hall 

301 

V.  Patrick 

49 

V.  People 

40 

V.  State 

432,  462 

V.  The  United  States  323 

V.  Whittall  575 

New  Eng.  Bank  v.  Lewis  530 

Glass  Co.  V.  Lovell        440 

New  Hampshire,  &c.,  Ins.  Co.  v. 

Hunt  68 

New  Haven  Co.  Bk.  v.  Mitchell    115, 

116,  572 

New  Jersey  Bay  v.  Cook  1 17 

New  Milford  v.  Sherman  110 

Newbolt  V.  Pryce  291 

Newburgh  v.  Newburgh  301 

Newcastle  (Dk.  of)  i'.  Kinderley     37 

Newcomb  v.  Drummond  509 

V.  Griswold  457,  465 

V.  Presbrey  564 

Newell  V.  Mayberry  565,  568 

V.  Newton  6 

V.  Simkin  473 

Newhall  v.  Holt  203 

V.  Ireson  301 

V.  Jenkins  193 

Newham  v.  Raithby  493 

Newman  v.  Atlas  Ins.  Co.  310 

V.  Doe  498 

V.  Jenkins  41,  550 

V.  Stretch  97,  103 

Newsam  v.  Carr  55 

Newsome  v.  Theghen  284 

Newton  v.  Belcher  37,  206,  207 

V.  Beresford  210 

V.  Harland  310 

V.  Harris  450,  455 

V.  Higgins  118 

V.  Liddiard        204,  206,  2U7 

V.  Mut.  Ben.   Life  Ins. 

Co.  108 

Nias  V.  N.  &  E.  Railway  Co.  240 

Nichols  V.  Alsop  38 

V.  Dowding         111,  112,  177 

V.  Downs  196,  219 

V.  Goldsmith  106 

V.  Ilolgate  385 

V.  Johnson  268,  566 

V.  Parker  134,  135,  145 

V.  Webb      115,  116,  121,  147 

Nickle  V.  Baldwin  119 

Nieman  v.  AVard  '  145 

Niles  V.  Brackett  421 

r.  Culver  305 

Nix  V.  Cutting  398 

Nixon  V.  Porter  479 

Noble  V.  Kennovvay  292 


INDEX  TO  CASES  CITED. 


Iv 


Noble  V.  ^lartin 

163 

V.  IMcClintock 

163 

Noke  V.  Ingham 

356 

Noonan  v.  State 

199 

Norcott  V.  Orcott 

409 

Norcutt  V.  Mottram 

73 

Norden  v.  Williamson 

172 

Norfolk  V.  Gaylord 

4 

51,  4 

51  a 

Norris  v.  Beach 

316 

V.  N.  Am.  Ins. 

Co. 

76 

North  V.  IVIiles 

180 

North  Lib.  (Bk.  of)  v. 

Davis  43.5 

444 

North    River    INIeadow    Co. 

V. 

Shrewsbury  Church 

564 

Northampton  Bank  v. 

Whiti 

ng 

266 

Northrop  v.  Wright 

21 

Northrup  v.  Jackson 

87 

Norton  v.  Coons 

276 

281 

V.  Doherty 

532 

V.  Pettibone 

109 

189 

V.  Kearney 

189 

Norwood  V.  Morrow 

409 

Nottage  V.  Prince 

38  a 

Nom-se  v.  McCay 

116 

V.  Nourse 

22 

Novelli  V.  Rossi 

547 

Nowell  V.  Davies 

389 

,  408 

Noyes  v.  Canfield 

280 

V.  Ward 

108, 

128 

,  139 

Nute  V.  Bryant 

420 

V.  Nute 

40,  49, 

440 

,449 

Nutting  V.  Page 

108 

o. 

Oakapple  v.  Copons  197 

Oakes  v.  Hill  485,  498 

O'Brien  v.  Davis  385 

V.  Gilchrist  305 

O'Callaghan  v.  Mm-phy  554 

Odell  v.^Culbert  118 

Odenbaugh  v.  Bradford  284 

Odiorne  v.  Bacon  513 

V.  Wade  331,  405 

V.  Winkley  52,  421,  423,  449 

Oelricks  v.  Ford  292 

Ogden  V.  Miller  117 

Ogle  V.  Atkinson  207 

V.  Pelaski  421 

Ohl  V.  Eagle  Ins.  Co.  261 

O'Kelly  V.  O'Kelly  110 

Oldnall  V.  Deakin  21 

Oldtown  (Bank  of)  v.  Houlton       332 

Oliphant  v.  Taggart  575 

Olive  V.  Guin  503 

Oliver  v.  Bartlett  101 

V.  State         156,  158,  159,  164 

V.  Watking  69 


Omara  v.  Commonwealth  334 

Omichund  v.  Barker  328,  369,  371 

O'Neill  V.  Read  171 

Opeuheim  v.  Leo  Wolf  6 

Orange  v.  Springfield  175 

Orcatt  V.  Ranney  55 

Ord  V.  McKee  485 

Orman  v.  Riley  485 

Orne  v.  Townsend  495 

Orr  V.  Morris  471 

Orrett  v.  Corser  147 

Osborn  v.  Staley  480 

V.  Thompson  74,  81 

V.  U.  S.  Bank  178 

Osborne  v.  London  Dock  Co.  451 

Osgood  V.  Manhattan  Co.       174,  176 

Osterhout  v.  Roberts  533 

Oswald  V.  Leigh  39 

Otterson  v.  Hofford  126 

Outram  v.  Morewood  22,  137,  138, 

145,  164,  531,  536 

Ovenston  v.  Wilson  573  a,  577 

Over  V.  Blackstone  358 

Owen  V.  Bartholomew  301 

V.  Boyle  485 

V.  Flack  196 

V.  Warburton  252  a 

Owens  V.  Collinson  402 

Owings  V.  Beall  519 

V.  Henderson  118 

V.  Hull  6,  490,  519 

V.  Low  112,  173, 174 

V.  Speed  389,  484 

V.  Wyant  86 


P. 


Packard  v.  Hill  514 

V.  Richardson  268,  385 

Packer  v.  Gonsalus  180 

Paddock  v.  Salisbmy  55 

Page  V.  F'aucett  5 

V.  Homans  577 

V.  Osgood  76 

V.  Page  349 

V.  Parker  434,  440 

V.  Sheffield  281,  303 

Paget  V.  Paget        ■  507 

Paige  V.  Cagwin  190 

V.  Hazard  440 

Pain  V.  Beeston                    .  462 

Paine  v.  Edsell  564 

V.  Hussey  420 

V.  Mclntier  281 

V.  Tilden  354,  469 

V.  Tucker   _  96 

Palethorp  v.  Furnish  185 

Palmer  v.  Fogg  323 


Ivi 


INDEX   TO   CASES    CITED. 


Palmer  v.  Haia^lit 

462 

Payne  v.  Ibbotson 

437 

V.  Lord  Aylesbury 

516 

V.  Rogers 

172 

173 

V.  Maclear 

437 

V.  TreadweU 

5 

V.  Stephens 

272 

Payson  v.  Good 

191 

V.  Stevens 

91 

Peabody  v.  Denton 

558 

V.  Trower 

449 

Peaceable  v.  Keep 

429 

Pangborn  v.  Young 

480 

V.  AVatson 

109 

147 

Panton  v.  Holland 

60,  6i 

Peacock  v.  Harris 

195 

V.  Williams 

49 

Pearce  v.  Gray 

528 

Papendick  v.  Bridgewater 

109 

V.  Hooper 

571 

Paris  V.  Hughes 

361 

Pearcy  v.  Fleming 

430 

Park  V.  Mears 

572 

Pearse  v.  Pearse 

240 

Parke  v.  Bird 

558 

Pearson  v.  Coles 

75 

V.  Smith 

385 

V.  Fletcher 

246 

Parker  v.  B.  &  H.  Steamboat  Co. 

440 

V.  Le  Maitre 

53 

V.  Carter 

239 

241 

Pease  v.  Hurst 

174 

V.  Green 

113 

V.  Peck 

480 

V.  Grout 

190 

Peaslee  v.  Gee 

301 

V.  Hardy 

2 

V.  Robbins 

42 

V.  Haskins 

572 

Peate's  case 

339 

V.  Hill 

568  a 

Pecker  v.  Sawyer 

385 

V.  McWilliam 

432 

Pedler  v.  Paige 

572 

V.  Merrill 

112 

Pedley  v.  Wellesley 

336 

340 

V.  Mitchell 

331 

405 

Peele  v.  Merch.  Ins.  Co. 

197 

V.  Morrell 

178 

Peet  V.  Dougherty 

384 

V.  Palmer 

49,  66 

Peile  V.  Stoddart 

240 

V.  Staniland 

271 

Peirce  v.  Newton 

461 

V.  Vincent 

402 

Peisch  V.  Dickson 

280 

,288 

I'.  Yates 

243 

Pejepscot  Prop's  v.  Ransom 

20,46 

Parkhui'st  v.  Lowton       451 

,456 

459 

Pelamourges  v.  Clark 

440 

V.  Van  Cortland 

268 

Pell  V.  PeU 

356 

Parkin  v.  Moon 

434 

Pelletreau  v.  Jackson 

22 

101 

Parkins  ik  Hawkshaw 

186 

239 

Peltzer  v.  Cranston 

118 

Parks  V.  Dunkle 

558 

Pember  v.  Mathers 

260 

V.  Edge 

73 

Pender  v.  Fobes 

281 

V.  Richardson 

37 

Pendleton  v.  Rooth 

189 

V.  The  Gen.  Int.  Assur.  Co 

288 

Pendock  v.  Mackinder 

372 

373 

Parrots  v.  Thacher 

260  a 

Penn  v.  Bibby 

584 

Parry  v.  Fairhurst 

73 

Pennellr.  Meyer 

201 

Parsons  v.  Copeland             '. 

195,  527  a 

Penniraan  v.  Hartshorn 

268 

V.  Huff 

322 

Pennsylvania  v.  Bell 

49 

V.  Phipps 

385 

V.  Farrell 

414 

V.  PurceU 

96 

Pennsylvania  (Bank  of)  v. 

Hal- 

Parten  v.  Cole 

89 

demand 

5S1 

Partenheimer  v.  Van  Order 

48 

Penn.  R.  R.  Co.  v.  Dormor 

480 

Partridge  v.  Coates 

560 

Penny  v.  Porter 

58,  m 

Patten  v.  Moor 

239 

242 

Penny  Pot  Landing  v.  Philadel- 

I'atterson v.  Choate 

112 

174 

phia 

145 

V.  Tucker 

437 

Penn^-packer  v.  Umberger 

385 

V.  Winn 

349 

Penobscot  Boom  Corp.  v. 

L,ara- 

Patton  r.  Ash 

38 

son 

563 

V.  Craig 

116 

Penrose  v.  Griffith 

23 

v.  Goldsborough 

180 

Penruddock  v.  Hammond 

240 

V.  Ryan 

117 

People  V.  Ah  Fat 

469 

Paul  t.  Meek 

97 

V.  Atkinson 

243 

I'aulette  v.  Brown 

49 

461 

V.  Bafi'ie 

219 

PauU  i\  Brown 

389 

408 

V.  Blakeley 

458 

Paxton  I'.  Courtnay 

282 

People  (The)  v.  Bill 

363 

V.  Douglas 

451 

V.  Carpenter 

343 

INDEX   TO   CASES   CITED. 


Ivii 


People  (The)  v.  CoUins  37 

V.  Costello  380,  381 

V.  Davis  461 

V.  Dean  362,  4U 

V.  Devlin  480 

V.  DoyeU  409 

V.  Eastwood  440 

t*.  Franklin  65 

V.  Garbutt  81  c 

V.  Gates  247 

V.  Gay  469 

V.  Glenn  161 

V.  Green  198,  346 

V.  Herrick  375,  457 

V.  Holbrook  89 

V.  Hopson  92 

V.  HoweU  414 

V.  Irving  353,  452 

V.  Irwin  296  a 

V.  Jones  331 

V.  Kelly  451 
V.  Knickerbocker     158 

V.  Lohman  407 

V.  Mahoney  480 

V.  Manning  457 

V.  Mather  451,  454 
456,  461 

V.  Matteson  369 

V.  McCrea  102,  216 

V.  McGarren  369 

v'.  McMahon  225 

V.  McXair  367 

V.  Miller  249 

V.  JVlinch  484 
ex  rel.  Ordronaux 

V.  Chegaray  343 

V.  Pease  378 

V.  Phillips  247 

V.  Pitcher  37 

V.  PoUyon  471 

V.  Price  49 

V.  Rathbun  37 

V.  Eobinson  158,  229 

V.  Rogers  229 

V.  Sanchez  434,  442 

V.  Schry\'er  81  c 

V.  Shea  101 

V.  Sheriff  of  New 

York  239 

V.  Spooner  580, 581 
V.  Stanley  37,  111,  233 

V.  Starke  455 

V.  Sterne  480 

V.  Throop  474 

V.  Tyler  331,  468 

V.  Vernon  101 

V.  Videto  13  a 

V.  Whipple  375,  379 

V.  Zeyst  484 


Pepin  V.  Solomons  51,  63 

Pepoon  V.  Jenkins  501,  505 

Percival  v.  Xanson  115,  147,  152 

Perham  c.  Reynall  _      17-i 

Perigal  v.  Nicholson  155,  421 

Perkins  v.  Perkins  42 

V.  Walker  531 

V.  Webster  301 

Pernam  v.  Weed  301 

Perrin  v.  Noyes  81  a 

Perry  v.  Fleming  429 

V.  Gerbeau  200 

V.  Gibson  445 

V.  Massey  443 

V.  Simpson  ^g.  Co.     171,  186 

Perry's  case  343 


Peri-vman  v.  Steggall 


427,  428 


Petapsco  Ins.  Co.  v.  Southgate       323 

Peterborough  v.  Jaffrey  440 

Peter  man  r.  Daws  398 

Peters  v.  Warren  Ins.  Co.  541,  543 

Peterson  v.  Stoffles  388 

Petherick  v.  Turner  112 

Peto  V.  Blades  398 

Petrie'.s  case  243 

Pettibone  v.  Deringer  323,  352 

Pettingill  v.  Dinsmore  55 

Petty  V.  Anderson  185 

PejTeaux  ;;.  Howard  6 

Pevtoe's  case  302 

Peyton  V.  HaUett  392 

Pevtona  (The)  427 

Pharaoh  v.  Lush        _  284  a,  288 

Phealing  v.  Kenderdine  451 

Phelps  V.  Cutler  80 

V.  Foot  101 

V.  Riley  167,  418 

Phenix  v.  Ingraham  180,  392 

Philadelphia   &   Trenton  Co.  v. 

Stimpson  423,  449 
Philadelphia  W.  &  B.  R.  R.  Co. 

V.  Howard  164 

Philips  V.  Kelley  102 

Phillip  v.  People  53 

Phillips  V.  Allen  81 

V.  Berick  532 

V.  Cole  190 

V.  Earner  445 

V.  Hall  207 

v-  Hunter  542 

V.  living  49 

V.  Kingfield  •            461 

V.  Shaw  70 

V.  Wells  565 

V.  Winburn  227 

Phillisku-k  v.  Pluckwell  78 

Phipps  V.  Pitcher  409 

V.  Schulthorpe  207 

Piatt  V.  jNlcCullough  20 


Iviii 


INDEX  TO   CASES   CITED. 


Pickard  v.  Bailey 

486,  514 

Poole  V.  Warren 

558 

V.  Sears 

204 

Pooler  V,  Curtis 

455 

Pickering  v.  Bp.  of  Ely 

115 

Pope  V.  Askew 

577 

V.  Dowson 

281 

V.  Levereux 

180 

V.  Noyes 

24G 

Poplin  V.  Hawke 

550 

Picton's  (Gen.)  case 

492 

Porter  v.  Byrne 

275 

Piddock  V.  Brown 

361 

V.  Ferguson 

108 

Pierce  v.  Butler 

399,  401 

V.  Judson 

115 

V.  Chase 

423 

V.  Pillsbury 

322 

V.  Hoffman 

53 

V.  Poquonuoc  Man. 

Co. 

440 

V.  Newton 

461 

V.  Seller 

54 

V.  Parker 

288 

V.  State 

37 

,  432 

V.  Weymouth 

304 

Potey  V.  Glossop 

40 

V.  Wood 

112 

Potter  V.  Baker 

532 

Pierson  v.  Hutchinson 

558 

V.  Sewell 

296  a 

Pigot  V.  Davies 

521 

V.  Ware 

386 

V.  HoUoway 

437 

V.  Webb 

55 

Pike  V.  Crehore 

513 

Potts  V.  Everhart 

109 

V.  Hayes 

109 

Poulter  V.  Killingbeck 

271 

Pile  V.  Benham 

428 

Poultney  v.  Ross 

118 

Pim  V.  Currell 

139 

Powel  V.  Hord 

394 

Pipe  V.  Steel 

356 

V.  Milburn 

35 

Pitcher  v.  Ban-ows 

138 

V.  Monson 

26 

Pitman  v.  Maddox 

117 

Powell  V.  Blackett 

572 

Pitt  V.  Chapelow 

.      207 

V.  Bradbui-y 

473 

,  559 

V.  Shew 

49 

V.  Edmunds 

281 

Pittam  V.  Foster 

176 

V.  Ford 

577 

Pitton  V.  Walter 

510 

V.  Gordon 

392 

Pitt^field,  &c.  P.  R.  Co.  v. 

Harri- 

V.  State 

462 

son 

484 

V.  Waters 

164 

Pizarro  (The) 

31,  37 

Power  V.  Frick 

576 

Planche  v.  Fletcher 

488 

V.  Kent 

239 

Plank-Road  Co.  v.  Bruce 

20 

Powers  V.  McFerran 

575 

V.  Wetsel 

568  a 

V.  Nash 

188 

Plant  V.  Condit 

284 

V.  Russell 

74 

V.  McEwen 

179 

V.  Shepard 

323 

Planters'  Bank  v.  George 

452 

V.  Ware 

566 

Plattekill  v.  New  Platz 

331 

Prather  v.  Johnson 

116 

,120 

Plaxton  V.  Dare 

143,  150 

V.  Palmer 

41 

Pleasant  r.  State 

432 

Pratt  V.  Andrews 

54 

Plimpton  V.  Chamberlain 

109 

V.  GosweU 

559 

Plambe  v.  Whiting 

387 

V.  Jackson 

288 

Plumer  v.  Guthrie 

284 

Prentice  v.  Achorn 

284 

Plummer  v.  Briscoe           9 

2,  113,  207 

Prescott  V.  Wright 

284 

V.  Sells 

185 

Prest  V.  INIercereau 

118 

Plunkett  V.  Cobbett 

251,  252  a 

Preston  v.  Bowmar 

301 

Pocock  V.  Billings 

190 

V.  Carr 

240 

Podgett  V.  Lawrence 

189 

V.  Harvey 

531 

Poignard  v.  Smith 

349 

V.  Merceau 

275 

281 

Pole  V.  Rogers 

320 

PrettjTnan  v.  Dean 

358 

Pomeroy  v.  Baddeley 

432 

Provost  V.  Gratz 

564 

Pomeroy's  case 

81c 

Prewitt  V.  Tilly 

331 

430 

Pond  V.  Hartwell 

420 

Price  V.  Currell 

128 

Ponsford  v.  O'Connor 

320 

V.  Dewhurst 

541, 

516 

Pontifex  v.  Jolly 

81 

V.  HaiTison 

659 

Pool  V.  Bridges 

108 

V.  Harwood 

208 

V.  Dicas                    1] 

5,  116,  120 

V.  Hollis 

183 

Poole  V.  Palmer 

395,  407 

V.  Littlewood 

137 

V.  Richardson 

440 

V.  Lord  Torrington 

116 

INDEX  TO  CASES   CITED. 


lix 


Price  V.  Morris 

323 

V.  Page 

289 

V.  Powell 

440 

Priest  V.  Nichols 

48 

Primm  v.  Stewart 

41 

Prince  v.  Blackburn 

572, 

575 

V.  Samo 

467 

V.  Shepard 

420 

V.  Smith 

118 

V.  Swett 

118 

Printup  V.  Mitchell          113, 

200 

561 

Printz  V.  Cheney 

451 

Pritchard  v.  Bagshawe 

203 

V.  Brown 

26 

266 

V.  Draper 

112 

V.  Foulkes 

213 

V.  ]\IcOweu 

lis 

V.  Powell 

130 

V.  Walker 

195 

Pritt  V.  Fairclough 

40, 

116 

Proctor  V.  Lainson 

180 

Prouty  V.  Ruggles 

322 

Provis  V.  Reed 

469 

Pullen  V.  Hutchinson      561, 

569 

575 

V.  Shaw 

561 

V.  The  People 

335 

Pully  V.  Hilton 

485 

Punderson  v.  Shaw 

118 

Purcell  V.  McNamara     56, 

30,  70,  78 

Parviance  v.  Di-yden 

358 

395 

Putnam  v.  Lewis 

212 

Putt  V.  Rawstern 

533 

V.  Roster 

533 

Pye's  case 

65 

Pyke  V.  Crouch 

536 

Pym  V.  Campbell 

284 

I^t  V.  Griffith 

572 

Q. 

Quarfcerman  v.  Cox 

422 

Queen  (The)  v.  Bertrand 

320 

V.  Cooper 

198 

V.  Muscott 

257 

Queen's  (The)  case  88,  201, 

218, 

231, 

370,  371,  462,  163 

405 

,  467 

Quick  V.  Quick 

582 

V.  Staines 

207 

,  210 

Quimby  v.  Buzzell 

572 

V.  Wroth 

430 

Quincey  v.  Quincey 

285 

Quinn  v.  Nat.  Ass.  Co. 

441 

V.  State 

35 

R. 

Radbnrn  v.  Morris 
Radcliffe  v.  Fuxsman 


428 
240 


Radcliffe  v.  United  Ins.  Co.  479,  491 

Radford  i'.  INlcIntosh  92,  195 

Raffles  V.  Wichelhaus  288 

Raggett  i\  Musgrave  198 

Ralph  V.  Brown  558 

Ralston  v.  Miller  145 

Ramadge  v.  Ryan  441 

Rambeit  v.  Cohen  90,  436 

Rambler  v.  Tryon  440 

Ramkissenseat  v.  Barker  371 

Ramsbottom  v.  Senior  215 

V.  Turnbridge  87,  39,  96 

Ramuz  v.  Crowe  558 

Rancliffe  (Lord)  v.  Parkins  144 

Rand  v.  Mather  303 

Randall  v.  Gurney  316 

V.  Lynch  205 

V.  Parramore  551 

V.  PhiUips  392 

Randall's  case  340 

Randel  v.  Chesapeake  563 

Randle  v.  Blackburn  201 

Randolph  v.  Gordon  142 

Rands  v.  Thomas  383 

Rangeley  v.  Webster  540 

Rank  v.  Shewey  87 

Rankin  v.  Blackwell  564 

V.  Horner  194 

V.  Tenbrook  _  109 

Ransom  v.  Keyes  427 

Rape  V.  Heaton  488  a 

Raper  v.  Birkbeck  566 

Rapeyle  v.  Prince  536 

Rastall  V.  Stratton  70 

Ratcliff  V.  Chapman  130 

V.  Pemberton  302 

V.  Planters'  Bank  568  a 

V.  Ratcliff  507 

V.  Wales  254,  344 

Ravee  v.  Farmer  532 

Raven  v.  Dunning  356 

Rawlings  v.  Chandler  469 

Rawlins  v.  Desborough  74,  441 

V.  Richards  116 

Rawls  V.  Am.  Life  Ins.  Co.  441 

Rawson  v.  Haigh  108,  110 

V.  Turner  533 

V.  Wallcer  281,  304 

Raymond  v.  Longworth  484 

V.  Raymond  281 

V.  Squire  173 

Raynham  v.  Canton  489,  505 

Rea  V.  Missouri  456 

Read  v.  Brookman  45,  566 

V.  Dunsmore  73 

V.  James  445 

V.  Passer  86, 107,  493 

V.  Sutton  508 

Reade's  case  13,  210 


Ix 


INDEX  TO   CASES   CITED. 


Reading  v.  McCubbin 

145 

Regina  v.  Farley 

239,  241 

Reamer  v.  Nesrmth 

288 

V.  Ford 

436 

Reardeu  v.  Minter 

571 

V.  France 

554 

Reay  v.  Richardson 

197,  287 

V.  Francis 

53 

Reece  v.  Rigby 

49 

V.  Garbett 

193,  225,  451 

V.  Trye 

240 

V.  Gardiner 

257 

Reed  i'.  Anderson 

563 

V.  Garner 

53,  219,  220 

V.  Boardman 

427,  436 

V.  Gazard 

249,  364 

V.  Dick 

110 

V.  Geering 

53 

V.  Dickey 

109 

V.  Gould 

231 

V.  Jackson  19, 135, 

137, 139, 145 

V.  Guinea 

437 

V.  Kemp 

568 

V.  Hall 

113 

V.  Lamb 

507,  584 

V.  Ilankins 

560 

V.  Propr's  of  Locks 

,&c.   49,237 

V.  Hartington 

534 

V.  Rice 

323 

V.  Hawks 

233 

Rees  V.  Overbaugh 

566 

V.  Hearn 

222,  232 

V.  Smith 

74 

V.  Hewett 

156 

V.  Walters 

142 

V.  Hill 

365 

V.  Williams 

572 

V.  Hincks 

362 

Reese  v.  Harris 

43 

V.  Holden 

462,  465 

Reeves  v.  Matthews 

360 

V.  Holmes 

220,  458 

V.  Slater 

69 

V.  Hughes 

252 

Regicide's  case 

256 

V.  Jarvis 

220 

Regina  v.  Adderbury 

175 

V.  Jones 

220,  241 

V.  Appleby 

199 

V.  Kitson 

562 

V.  Arnold 

224,  225,  229 

V.  Laugher 

222 

V.  Atwood 

220 

V.  Luckhurst 

220,  222 

V.  Avery 

243 

V.  Mainwearing 

38  a 

V.  Baldry 

220  a 

V.  Mansfield 

28 

V.  Ball 

435,  444 

V.  Megason 

102,  156 

V.  Bannen 

382 

V.  Milton 

130,  139 

V.  Barber 

580 

V.  Mooney 

158 

V.  Bedford 

138 

V.  Moore 

223 

V.  Bedfordshire 

130 

V.  Moreau 

184,  362,  537 

V.  Berigan 

379 

V.  Morse 

227 

V.  Bickett 

381 

V.  Mm-phy  432, 

435,  445,  576, 

V.  Bird 

166 

580 

V.  Birmingham 

109 

V.  Newton 

92 

V.  Blake 

111,  233 

V.  Osborne 

102 

V.  Bond 

65 

V.  Overtou 

448 

V.  Boulter 

257,  257  a 

V.  Owen 

226 

V.  Brightside 

139 

V.  Pai'ker 

257 

V.  Broadliempston              38  a 

V.  Perkins 

157,  158 

V.  Burke 

455 

V.  Philpots 

436 

V.  Butler 

218,  227 

V.  Pikesley 

224, 225 

V.  Caldwell 

580 

V.  Plummet 

166 

V.  Cavendish 

81c 

V.  Povey 

488 

V.  Champney 

257 

V.  Reason 

220 

V.  Chapman 

435 

V.  Reeve 

222 

V.  Child 

167 

V.  Roberts 

257 

V.  Clay 

51 

V.  Roden 

53 

V.  Coote 

34 

V.  Rowton 

54,  65 

V.  Cotton 

53 

V.  Shcllard 

462,  463,  465 

V.  Cranage 

02 

V.  Sloman 

319 

V.  Dent 

488 

V.  Spicer 

65 

V.  Drew 

220  a 

V.  Stainforth 

38  a 

V.  Dun  combe 

4G3 

V.  Stapleton 

28 

V.  Dyke 

381 

V.  Steele 

158 

V.  Esdaile 

584 

V.  St.  George 

462 

INDEX  TO   CASES    CITED. 


Ixi 


Regina  v.  St.  Mary 

V.  Stoke 

V.  Taylor 

V.  Totness 

V.  Vernon 

V.  Vickery 

V.  Vincent 

V.  Weller 

V.  Wheeley 

V.  "Williams 

V.  AVink 

V.  AVooldale 

V.  "Worth 

V.  Yates 
Regnell  i'.  Sprye 
Reid  V.  Battia 

V.  Margison 
Reilly  v.  Fitzgerald 
Reitenback  v.  Reitenback 
Remou  v.  Hayward 


116 
292 
449,  463 
38  a 
222 

83 
102 
227 
226 
335 
102 

69 

115,  147,  150 

257 

210 

89 

508 

131 

134,  233 

280 


Renner  v.  Bank  of  Columbia   84,  292 

Respublica  v.  Davis  187 

V.  Gibbs  456 

V.  Keating  414 

V.  McCarty  218,  224 

V.  Ross  362 

Revett  V.  Braham  76,  580 

Revis  V.  Smith  452 

Rex  V.  Addis  381 

V.  Aikles  484,  493 

V.  Algood  473,  475 

V.  Allison  86 

V.  All  Saints  38  a,  342 

V.  Almon  36,  234 

V.  Antrobus  138 
V.  Appleby               199,  217,  233 

V.  Arundel  6,  37 

V.  Ashton  158,  162 

V.  Atkins  195 

V.  Atwood  380 

V.  Babb  474 

V.  Baker  53,  156,  102 

V.  Ball  53,  224,  227 

V.  Barnard  380,  459 

V.  Barnes  195,  518 

V.  Barrett  40 

V.  Bartlett  199,  213 

V.  Bath  wick  342,  570 

V.  Beardmore  319 

V.  Bellamy  508 

V.  Benson  38  a,  82,  512 

V.  Bevan  403 

V.  Bishop  of  Ely  474 

V.  Bleasdale  53 

V.  Bliss  138 

V.  Bonner  158,  160 

V.  Book  253 

V.  Borrett  195 
V.  Boston         362,  390,  414,  537 


Res  V.  Brandreth 
V.  Brangam 
V.  Brasie 
V.  Brewer 
V.  Briggs 
V.  Britton 
V.  Brommick 
V.  Brooke 
V.  Brown 
V.  Bryan 
V.  Burditt 
V.  Burley 
V.  Callahan 
V.  Careinion 
V.  Carty 
V.  Castle  ton 
V.  Cator 
V.  Chapman 
V.  ChappeU 
V.  Christie 
V.  Clapham 
V.  Clarke 
V.  Clewes 
V.  Cliviger 
V.  Cole 
V.  Collery 

V.  Cook 

V.  Cooper 

V.  Cope 

V.  Cotton 

V.  Court 

V.  Crockett 

V.  Darley 

V.  Davis 

V.  Dawber 

V.  De  Beringer 

i;.  Dean  of  St.  Asaph 

V.  Derrington 

V.  Despard 

V.  Dingley 

V.  Dixon 

V.  Doherty 

V.  Dor  an 

I'.  Drummond 

V.  Dunn 

V.  Durham 

V.  Edwards 

V.  Egertou' 

V.  Ellis 

V.  Embden 

V.  Enoch 


193, 
445, 


96,  372, 


90, 


54, 102,  210, 
201,  218,  221, 

53, 


218,  219, 


111 

471 
367 
244 
53 
226 
195 
447 
245 
21 
78 
379 
161 
375 
227 
558 
580 
435 
221 
158 
493 
469 
223 
342 
390 
432 
432 
221 
116 
131 
229 
158 
65 
373 
380 
491 
49 
229 
382 
379 
18,  36,  243 
343 
87 
157 
223 
380 
463 


225, 
6, 


449,  457, 
53, 


218,  22 


225 

512 
ooo 


ErisweU  99, 125, 138, 163, 

Esop 

Fagent  158, 

Fagg 

Farler 

Farringdon 

Farrington 

Fearshire 


ooo 

18 

159 

224 

382 

21 

34 

227 


Ixii 


INDEX  TO   CASES   CITED. 


Kex  V.  Ferrers 

r.  Ferry  Frystone 

V.  Fitzgerald 

V.  Fletcher 

V.  Ford 

V.  Forsyth 

V.  Foster 

V.  Fox 

V.  Francklin 

V.  Frederick 

V.  Fuller 

V.  Fursey 

V.  Gardiner 

V.  Gardner 

V.  Gay 

V.  Gibbons 

V.  Gilham 

V.  Gilroy 

V.  Gilsou 

V.  Gisburn 

V.  Goodere 


343 

125 

484,  493 

218,  363,  379 

373,  378 

479 

228 

418 

491 

335 

34 

84,  94 

374 

195,  479 

161 

222,  223,  248 

193,  229 

459 

87 

95,  422 

432 


Gordon  (Lord  George)  40,  83, 
92,  482 
V.  Green  229 

V.  Greene  225 

i;.  Greepe  378 

V.  Griffin  222,  232 

V.  Grimwood  484 

V.  Gully  6 

V.  Gutch  36,  234 

V.  Harborne  35 

V.  Hardwick  112,  174,  175,  223, 
331 
V.  Hardy  111,  256 

V.  Hare  561 

V.  Hargrave  380,  382 

V.  Harringworth  569 

V.  Harris       220  a,  227,  231,  257 
V.  Harvey  34 

V.  Hastings  380 

V.  Hawkins  35,  80 

V.  Hay  30 

V.  Hayward  158 

V.  Hazy  78,  82 

V.  Hearne  218 

V.  Hebden  536 

V.  Higgins  218 

V.  Ho(lgdon  458 

V.  Hodgkiss  461 

V.  Hodgson  54 

V.  Iloll'ister  478 

V.  Holt  479,  492 

V.  Hood  335 

V.  Hostmen  of  Newcastle      475 
r.  Houghton  53 

V.  Howard  83,  91,  92 

V.  Howes  90,  111,  142 

V.  Hube  86,  90 

V.  Hacks  49,  65,  160 


Rex  V.  Plughes  28 

V.  Hunt  28 

V.  Hunter  49,  246 

V.  Hutchinson  156 

V.  Inhab.  of  Castle  Morton  96 
V.  Inhab.  of  Holy  Trinity  87,  96 
V.  Inhab.  of  Netherthong  333 
V.  Jacobs  227 

V.  Jagger  343 

V.  Jarvis  78,  382 

V.  Jenkins  222,  232 

V.  Johnson  40 

V.  Jones        6,  92,  218,  220,  222, 
232,  319,  380 
V.  Jordan  28 

V.  Justices  of  Buckingham  474 
V.  Justices  of  Surrey  478 

V.  Kea  253 

V.  Kerne  195 

V.  King  484,  493 

V.  Kingston  223 

V.  Kirdford  331 

V.  Knill  257,  259 

V.  KnoUys  6 

V.  Lafone  363 

V.  Laindon  285 

V.  Leefe  65 

V.  Lewis  225,  226,  451,  457,  458 


Lingate 

Lloyd 

Lloyd  et  al. 

Locker 

Long 

Long  Buckby 

Lucas 

Luckup 

Luffe 

]\Iagill 

Mahew 

Martin 

Mashiter 

]\Iayor 

Mayor  of  London 

Mead 

Medley 

jVIerceron 

IMerchant  Tailors 

]\Iiller 

]\Iill3 

Moore 

]\Iorgan 

jNIorris 

Morton 

INIosley 

Mudie 

Mutineers 

Neale 

Neville 

Noakea 


223 

229 

156 

335,  407 

53 

21,  38  a,  46 

473 

403 

5,  28,  253,  344 

229 

257 

54,  484,  493 

280 

536 

331 

156,  343 

36 

193 

474 

6 

220,  222 

381 

371,  578 

512 

220  a,  558 

158 

257  a 

363 

381 

209 

881 


INDEX   TO   CASES   CITED. 


Ixiii 


Eex  V.  Northampton 
V.  North  Pendleton 

53 
493 

V.  Nuneham  Courtney 
V.  Nutt 

125 
36 

V.  Oldroyd 
V.  Oweu 

442,  444 
28 

V.  Page 
V.  Paine 

558 
218 

V.  Parker 

257  a,  469 

V.  Parratt 

222 

V.  Partridge 

34, 

220   222 

V.  Pearce 

*"  '  "53 

V.  Pedler 

440 

V.  Pegler 

451 

V.  Phillips 
V.  Picton 

28 
488 

V.  Pike 

157,  367 

V.  Pippitt 
V.  Pitcher 

70 

458,  460 

V.  Plumer 

40,  198 

t?.  Pollard 

28 

V.  Pountney 
V.  Pratten 

222   223 

V.  Pressly 
V.  Priddle 

90,  228 
373 

V.  Purnell 

474 

V.  Ramsden 

437 

V.  Rawden 

87 

V.  Read 

227,  228 

V.  Reading 

344,  457 

V.  Reason  et  al. 

156, 

159,  161 

V.  Rhoades 

484,  493 

V.  Richards 

221 

V.  Rivers 

224, 

225,  227 

V.  Roberts 

53 

V.  Robing 
V.  Roddam 

458 
312 

V.  Rogers 

78 

V.  Rookwood 

461 

V.  Rooney 
V.  Row 

53 
223 

V.  Rowland 

363 

V.  Rowley 

165 

V.  Rudd 

335 

386,  413 

V.  Russell 

319,  559 

V.  Ryton 
V.  Sadler 

21 
311 

V.  Saunders 

224 

V.  Scaife 

159 

V.  Scammonden 

285,  305 

V.  Searle 

440 

V.  Sergeant 

336,  343 

V.  Sextons 

222 

V.  Shaw 

225 

229,  237 

V.  Shelley                   83 

V.  Shepherd 

V.  Sheriff  of  Chester 

475,  478 
222 
473 

V.  Sherman 

363 

V.  Shipley 

18 

Rex  V.  Simons  45,  200,  224,  229 

V.  Simpson  222,  223 

V.  Slaney  451 

V.  Slaughter  223 

V.  Smith  53,  248,  885,  473,  482, 
508,  513 
V.  Smith  &  Homage       224,  225 


V.  Smithie 

215 

V.  Spencer 

223,  512 

V.  Spilsbuiy    158, 

160, 

227,  229 

V.  Steptoe 

218 

V.  Stevens 

39 

V.  St.  Martin's 

456,  437 

V.  St.  Mary  Magdalen, 

Ber- 

mondsey 

333,  347 

V.  Stone 

78 

17.  St.  Pancras 

531,  534 

V.  Sutton               S 

,28 

139,  491 

V.  Swatkins 

222,  228 

V.  Tanner 

41 

V.  Tarrant 

90,  228 

V.  Taylor 

222,  223 

V.  Teal 

383 

458,  459 

V.  Teasdale 

412 

V.  Tellicote 

228 

V.  Thanet 

364 

V.  Thomas 

219,  223 

V.  Thornton     222, 

225 

229,  230 

V.  Tilly 

403 

V.  Tower 

473 

V.  Tubby 

225 

V.  Tm-ner 

78,  79,  233 

V.  Twining 

35,41 

V.  Tyler 

218,  223 

V.  Upchurch 

222,  223 

V.  Upper  Boddingi 

on 

239 

V.  Upton  Grey 

38  a 

V.  Van  ButcheU 

158,  160 

V.  Vaughan 

432 

V.  Verelst 

83,  92 

V.  Virrier 

257  a 

V.  Wade 

367 

V.  Walker 

218,  225 

V.  Walkley 

223 

V.  Waller 

65 

V.  Walter 

36 

227,  234 

V.  Waters 

65 

V.  Watkinson 

245 

V.  Watson      40,  52,  65 

,  90,  101, 

111,  198,250, 

2.56, 

423,  449, 

459 

460,  469 

V.  Webb 

225,  381 

r.  Wells 

381 

V.  Westbeer 

379 

V.  Whiston 

38  a 

V.  White 

367 

V.  Whitley  Lowe 

175 

V.  Wickham 

285 

V.  wnd 

225,  229 

Ixiv 


INDEX  TO   CASES   CITED. 


Rex  V.  Wilde                      6 

,  223,  229 

Riddle  v.  Moss 

402 

V.  Wiley 

53 

Ridgway  v.  Bowman 

281 

V.  Wilkes 

321 

V.  Ewbank 

81 

V.  Williams     3G7,  392 

,  403,  412 

Ridley  v.  Gyde 

108,  110 

V.  Withers 

237,  479 

Rigg  V.  Curgenwen 

200,  210 

V.  Woburn      175,  330, 

331,  353, 

Riggins  V.  Brown 

165 

452 

Riggs  V.  Taylor 

349 

V.  Woodcock  156,  158, 

159,  161, 

Right  V.  Price 

272 

346 

Riley  v.  Gerrish 

281 

V.  Woodfall 

34 

V.  Gregg 

281 

V.  Wriq-ht 

440 

V.  Suydam 

185 

V.  Wylie 

53 

Rindge  v.  Breck 

118 

V.  

34 

Ringgold  V.  Tyson 

385 

V.  Yewin  ■ 

450,  459 

Rioters  (The) 

412 

V.  Young 

382 

Ripley  v.  Babcock 

42 

Rev  V.  Simpson 

288 

V.  Thompson 

395 

Repier  j'.  Hall 

212 

V.  Warren 

6 

Reynolds  v.  Manning 

120,  201 

Ripon  V.  Davies 

245 

V.  Rowley 

113,  246 

Ripple  11.  Ripple 

505,  546 

V.  Staines 

171 

Rishton  v.  Nesbitt 

196 

Rhine  v.  Ellen 

304 

Roach  V.  Garvan 

545 

V.  Robinson 

165,  166 

V.  Learned 

108 

Rhodes  v.  Ainsworth 

139,  405 

Rob  V.  Hackley 

469 

V.  Bunch 

55 

Robb  V.  Starkey 

560 

V.  Selim 

561 

Bobbins  )'.  King 

254,  334 

Ribbans  v.  Crickett 

205 

V.  Otis 

58,68 

Ricard  v.  Williams 

17 

V.  State 

156 

Ricardo  v.  Garcias 

546 

Roberts  v.  Adams 

392 

Rice  V.  Austin 

420 

V.  Allatt 

451 

V.  N.  E.  Marine  Ins.  Co.       444 

V.  Doxon 

93 

V.  Peet 

284 

V.  Simpson 

246 

V.  Rice 

239 

V.  Tennell 

551 

V.  Wilkins 

394 

V.  Trawick 

392 

Rich  V.  Flanders 

177 

V.  Whiting 

420 

V.  Jackson 

265,  281 

Robert's  case 

221,  222 

V.  Topping 

399 

Robertson  v.  French 

278 

Richards  v.  Bassett          130, 

131,  137 

V.  Lynch 

58 

V.  Howard 

118 

V.  Smith 

427 

V.  jNIorgan 

553 

V.  Stark 

440 

Richardson  v.  Allen 

443 

V.  Teal 

6 

V.  Anderson 

173,  487 

Robinson  v.  Batchelder 

304 

V.  Carey 

116,  389 

V.  Cushman 

211 

V.  Churchill 

276 

V.  Dana 

365 

V.  Desborough 

260  a 

V.  FitchburgR.  B 

.  Co.  113 

V.  Dorr 

24 

V.  Flight 

240  a 

V.  Fell 

81 

V.  Gilman 

479 

V.  Freeman 

333,  427 

V.  Hutchinson 

180,  462 

V.  Hooper 

303 

V.  Jones 

543 

V.  Hunt 

387 

V.  Markiss 

322 

V.  Learned 

341 

V.  Nahor 

27,  207 

V.  Newcomb 

581 

V.  Prescott 

505 

V.  Watson 

288 

V.  Robinson 

217 

V.  Williams 

362 

V.  Trull 

311,319 

Richmond  v.  Patterson 

484 

V.  Yarrow 

196 

V.  Thoinaston 

108 

Robinson's  case 

53 

Rickards  v.  IVIurdock 

441 

Robison  v.  Alexander 

193 

Rickets  v.  Salwey 

63,  72 

V.  Sweet          108, 

195, 527 

Rickman's  case 

34,  53 

Robson  V.  Drummond 

281 

Riddick  v.  Leggatt 

301 

V.  Kemp              181, 

240, 245 

INDEX  TO  CASES   CITED. 


Ixv 


Roby  V.  Howard  76 

Rochester  r.  Chester  440 

Roden  v.  Ryde  575 

Rodman  v.  Forman  70 

V.  Hoops  118 

RodriQ;uez  v.  Tadmire  55 

RodvveU  V.  Phillips  271 

V.  Redge  35 

Roe  V.  Archb'p  of  York  265 

V.  Davis  97 


V.  Day 

V.  Ferravs 
V.  Ireland 
V,  Jeffrey 
V.  Lowe 
V.  Rawlings 
V.  Reade 
Roelker,  in  re 
Rogers  v.  Allen 
V.  Berry 
V.  Custance 
V.  Dibble 
V.  Pitcher 
V.  Thompson 
V.  Tm-ner 
V.  "Wood 
Roger's  case 
Rohan  v.  Hanson 


197,  201, 287 

2U2 

45 

130 

46 

21,  152,  570 

46 

319 

58,  71,  130,  143 

427 

562 

421 

207 

533 

395 

129,  136 

373 

304 


Rohrer  v.  Morningstar  385 

Rolf  V.  Dart  508 

Rolfe  V.  Rolfe  197 

Rollins  V.  Dyer  305 

Romero  v.  United  States  6 

Ronkendorff  v.  Taylor  493 

Root  V.  Fellowes  532 

V.  King  55,  482,  491 

Ropps  V.  Barker  286 

Roscoe  V.  Hale  174 

Rose  V.  Blakemore  451,  460 

V.  Bryant  121 

V.  Himely  5,  541 

V.  Savory  118 

Roseboom  v.  Billington  121 

Rosenbaum  v.  State  54 

Rosevelt  v.  Marks  112 

Koss  I'.  AnsteU  6 

V.  Bruce  89 

V.  Buhler  364 

V.  Espy  276 

V.  Gould  49,  160,  425,  564 

V.  Lapham  55 

V.  Reddick  6 

V.  Reed  40 

V.  Rhoads  145 

Rothehoe  v.  Elton  396 

Rotherham  i'.  Green  71 

Rouch  V.  Gt.  West.  R.  R.  Co.        108 

Rowe  V.  Brenton     150,  151,  512,  517 

V.  Grenfel  5 


Rowe  V.  Hasland  41 
Rowland  v.  Ashby  224,  227 
Rowlandson  v.  Wainwright  84 
Rowley  v.  Ball  558 
Rowntree  v.  Jacobs  26 
Rowt  V.  Kile  581 
Ruan  V.  Perry  54 
Rucker  v.  Palsgrave  205 
Rudd's  case  222 
Rudge  V.  Ferguson  392 
Rugg  V.  Kingsmill  38  a 
Ruggles  V.  Buckner  323 
Ruloff  V.  People  217,  331 
Ruijiford  v.  Wood  331 
Runk  V.  Ten  Eyck  114,  485 
Rush  v.  Flickwii-e  402 
V.  Smith  445 
Rushforth  V.  Pembroke  164,  553 
Russel  V.  Werntx  287 
RusseU  V.  Beuckley  40 
V.  Blake  395 
V.  Coffin  437,  409 
f.  Erwin  281 
V.  Jackson           237,  240,  244 
V.  Rider  437,  466 
Russian  Steam  Nav.  Co.  v,  Silva  292 
Rust  V.  Baker  41 
Rustell  V.  Macquister  53 
Rustin's  case  366 
Rutherford  v.  Rutherford  272 
Rutland  &  B.  R.  R.  Co.  v.  Sim- 
son's  Adm'r  329 
Ryan  v.  Sams  207 


S. 

Sabine  v.  Strong  323, 

Sackett  v.  Spencer 
Sage  V.  McAlpine 

V.  Wilcox 
Sainthill  v.  Bound 
Salem  v.  Lynn 

V.  Williams 
Salem  Bank  v.  Gloucester  Bank 
200, 
Salisbury  v.  Connecticut 
Salmon  v.  Ranee 

Saltar  v.  Applegate  20,  38  a 

Salte  V.  Thomas  484, 

Saltmarsh  v.  Tuthill 
Sample  v.  Frost 
Sampson  v.  Overton 
Sanborn  v.  Neilson 
Sanches  v.  People  434, 

Sanderson  v.  Collman 
V.  Symonds 
Sandford  v.  Chase  316,  317, 

V.  Hunt 


418 
440 
532 
268 
449 
108 
208 

208 
412 
392 
,40 
493 
385 
239 
506 
192 
442 
207 
565 
318 
75 


Ixvi 


INDEX  TO  CASES   CITED. 


Sandford  v.  Raikes 

285 

Schuylkill,  &c.  Ins.  Co.  v. 

Mc- 

V.  Remington 

245 

Creary 

23 

Sandilands  v.  Marsh 

112 

Scorell  V.  Boxall 

271 

Sangster  v.  Mazarredo 

177 

Scoresby  v.  Sparrow 

349 

Santissima  Trinidad  (The) 

4 

Scott  V.  Blanchard 

505 

Sargeant  v,  Sargeant 

172, 

190, 

353, 
354 

V.  Brigham 
V.  Burton 

118 
284 

Sargent  v.  Adams 

282 

297 

V.  Clare                       SC 

,96 

203 

V.  Fitzpatrick 

532 

V.  Cleveland 

505 

V.  Hampden 

239 

V.  Hooper 

370 

Sartorious  v.  State 

432 

V.  Hull 

75,76 

Sasscer  v.  Farmer's  Bank 

5 

V.  Jones 

89 

Satterthwaite  v.  Powell 

30 

V.  Lifford 

426 

Saunders  v.  Hendrix 

338 

V.  Lloyd 

354 

385 

V.  Mills 

53 

V.  Marshall 

1«0 

V.  Wakefield 

268 

V.  McLellan            391, 

399 

,401 

Saunderson  v.  Jackson 

268 

V.  Pilkington 

546 

V.  Judge 

40 

V.  Waithman 

207 

571 

V.  Piper 

2^7 

V.  Wells 

416 

Sauniere  v.  Wode 

113 

Soovill  V.  Baldwin 

37 

Savage  v.  Balch 

180 

Scraggs  V.  The  State 

104 

V.  Smith 

5:» 

Scribner  v.  McLaughlin 

421 

Savignac  v.  Garrison 

49 

Scrimshire  v.  Scrimshire 

545 

Sawyer  v.  Baldwin 

484 

Seaman  v.  Hogeboom 

287 

V.  Eifert 

55 

Searight  v.  Craighead 

112 

In  re 

222 

Searle  v.  Lord  Barrington 

122 

V.  Maine  Fire 

&  Marine 

Sears  i\  Brink 

268 

Ins.  Co. 

541 

V.  Dillingham 

347 

Saxton  V.  Johnston 

Ob 

Seaver  v.  Bradley 

392 

V.  Nimms 

484 

V.  Robinson 

318 

Sayer  v.  Wagstaff 

438 

Seavy  v.  Dearborn 

436 

443 

Sayles  v.  Briggs 

508 

Sebree  v.  Dorr 

84,  87 

Sayre  v.  Reynolds 

564 

Security  Ins.  Co.  v.  Fay 

22 

Say  ward  v.  Stevens 

281 

Seddon  v.  Tutop 

532 

Scales  0.  Jacob 

113 

Sedgwick  v.  Walkius 

340 

343 

V.  Key 

41 

Seekright  v.  Bogan 

349 

Scammon  v.  Scammon 

1G8 

,190 

,314 

Selby  V.  Hills 

316 

Scanlan  v.  Wright 

571 

Selden  v.  INlyers 

284 

Schaeffer  ;;.  Kreitzer 

510 

V.  Williams 

295 

Schall  V.  Miller 

167 

Selfe  V.  Isaacson 

432 

Scliaser  v.  State 

53 

Sells  V.  Hoare 

371 

Schauber  v.  Jackson 

46,47 

Selwood  V.  Mildway 

289 

Scheuck  v.  Mercer  County 

Mut. 

Selwyn's  case 

30 

Jus.  Co. 

Ail 

Senior  v.  Armytage 

294 

Schi^rmerhorn  v.  Schermerhorn 

356 

Serchor  v.  Talbot 

69 

Schillinger  v.  MoCann 

2(J 

420 

421 

Sergeson  v.  Sealey 

556 

Schinotti  v.  Bumstead 

474 

Serle  v.  Serle 

397 

Sciimidt  V.  New  York, 

&c. 

Ins. 

Settle  V.  AUi.son 

21 

506 

Co. 

55 

Sewell  V.  Buxton 

304 

Schnable  v.  Koehler 

409 

V.  Evans 

575 

Schn(!rtznell  v.  Young 

506 

V.  Stubbs                 9i: 

,97 

422 

Schretler  v.  State 

225 

Seymour  v.  Beach 

519 

Scholes  V.  Hilton 

319 

V.  Delancy 

284 

Scholl  V.  Miller 

166 

Seymour's  case 

84 

Schooner  Reeside 

292 

Shack  V.  Anthony 

303 

Schreger  i\  Carden 

205 

Shafer  v.  Stonebreaker 

531 

Schricdly  v.  State 

53 

Shatfuer  v.  Commonwealth 

53 

Schuchardt  v.  Allen 

51a 

Sliailer  v.  Bumpstead 

108 

Schusler  v.  State 

13  a 

Shaller  i;.  Brand 

144 

INDEX  TO   CASES   CITED. 


Ixvii 


Shamburg  v.  Commagere  385 
Shanklaiid  v.  City  of  Washing- 
ton 281 
Shankwiker  v.  Reading  3'22 
Shannon  v.  Coniniouwealth  423 
Shai'p  V.  Johnson  35 
V.  Sharp  488  a 
Sharpe  v.  Bingley  437 
V.  Lambe  560 
V.  Sharpe  581 
Shaw  V.  Broom  190 
V.  Charlestown  440 
V.  Emery  461 
Sheafe  v.  Rowe  440 
Shean  v.  Philips  239 
Shearer  t'.  Harber  103,  183 
Shearman  v.  Aikens        116,  120,  147 
Shedden  v.  Attorney-General  131, 133 
V.  Patrick          107,  133,  468 
Sheehy  v.  Mandeville  69,  539  a 
Sheen  v.  Bumpstead  63,  101 
Sheffield  v.  Page  284  a 
Shelby  v.  Smith  420 
V.  The  Governor,  &c.  187 
V.  Wright  23,  26 
Shelby^'ille  v.  Shelbyville  40 
Sheldon  v.  Benham  116,  280 
V.  Clark  79 
Shelling  v.  Farmer  474 
Shelly  V.  Wright  531 
Shelton  v.  Barbour  164 
V.  Cocke  112 
V.  Deering  668  a 
V.  Livius  271 
Shepard  v.  Palmer  416 
Shepherd  v.  Chewter  212 
V.  Currie  38 
V.  Little  26 
V.  Tliompson  145 
Sherburne  v.  Shaw  268 
Sheridan  v.  Kirwin's  case  90 
Sheriff  v.  Wilkes  174 
Sherman  v.  Akins  120 
V.  Barnes  396 
V.  Crosby       116,  120,  147, 
152 
V.  Sherman  197 
Sherrington's  case  221 
Sherwood  o.  Burr  17 
Shields  v.  Boucher  103 
Shiels  V.  AVest  565 
Shires  v.  Glasscock  272 
Shii-ley  v.  Shirley  268 
V.  Todd  190 
Shoemaker  v.  Benedict  t  174 
Shoenberger  v.  Zook  304 
Shoenbergher  v.  Hackman  37,  82,  84 
Shore  v.  Bedford             239,  243,  245 
©horey  v.  Hussey  443 


Short  V,  Lee     83,  115,  147,  149,  153, 

154,  155 

I'.  Mercier  451 

Shortz  I'.  Unangst  558 

Shott  V.  Streatheld  "         101 

Shotter  v.  Friend  260  a 

Shown  V.  Barr  506 

Shrewsbury   (Carpenters  of)   v. 

Hayward  405 

Shrewsbury  Peei-age  105,  106 

Shrouders  v.  Harper  558 

Shumway  v.  Ilolbrook  518 

V.  Stillman  548 

Shuttleworth  v.  Bravo  392 

Sibley  v.  Waffle  239 

Sidney's  case  576 

Sievewright  v.  Archibald  97 

Silk  V.  Humphreys  81 

Sillick  V.  Booth  30,  41 

Sills  V.  Brown  440,  537,  553 

Silver  Lake  Bank  v.  Harding         505 

Simmonds,  in  re  272 

Sinunons  v.  Bradford  27 

V.  Simmons  257,  381 

Simpson  v.  Dendy  53  a 

V.  Fogo  546 

V.  Margitson  49,  277 

V.  Morrison  112 

V.  Norton  509 

V.  Stackhouse  564 

V.  Thoretou  479,  558 

Sims  V.  Kitchen  314 

V.  Sims  558 

Sinclair  v.  Baggaley  40,  121 

V.  Fraser  546 

V.  Sinclair  545 

V.  Stephenson  275,  284,  437, 

466,  560 

Singleton  v.  Barrett  90,  97 

Sisk  V.  Woodruff  489 

Sissons  V.  Dixon  35 

Skaife  v.  Jackson     172,  173,  174,  211 

Skilbeck  v.  Garbett  40 

Skinner  v.  Perot  374 

Skipp  V.  Hooke  5 

Skipworth  v.  Greene  26 

Slack  V.  Buchanan  192 

V.  Moss  385 

Slade  V.  Teasdale  118 

Sladden  v.  Sergeant  463 

Slane  Peerage  (The)  104 

Slaney  v.  Wade  104,  134 

Slater  v.  Hodgson  570 

V.  Lawson  174,  176 

Slatterie  v.  Pooley  96,  203 

Slaymaker  v.  Gundacker's  Exr.      176 

V.  Wilson  577 

Sleeper  v.  Van  Middlesworth         431 

Sleght  V.  Rhmelander  280 


Ixviii 


INDEX  TO   CASES   CITED. 


Sloan  V.  Soraers 

165 

166 

Smith  V.  Sandford 

117,  334 

Sloman  v.  Heme 

180 

181 

V.  Scudder 

185 

Slubv  V.  Champlin 

572 

575 

V,  Simmes 

180 

Small  V.  Leonard 

532 

V.  Sleap 

560 

Smallcombe  v.  Bruges 

181 

V.  Smith 

38,  107,  189 

Smart  v.  Kayner 

75 

V.  Sparrow 

351,  421 

Smiley  v.  Dewey 

349 

V.  State 

158 

Smith  V.  Arnold 

268 

V.  Stickney 

469 

V.  Barker 

68 

V.  Surman 

271 

V.  Battens 

121 

V.  Taylor 

63,  195 

V.  Beadnell 

193 

V.  Thompson 

300 

V.  Bell 

287 

V.  Vincent 

176 

V.  Blackham 

390 

V.  AVard 

276 

V.  Blagge 

506 

V.  Westmoreland 

174 

V.  Blakey 

116 

V.  Whitaker 

43,  480,  488  a 

V.  Blandy 

201 

V.  Whittingham 

187 

V.  Brandxam 

73 

V.  Wilson 

49,  280,  292 

V.  Brown 

305 

,     V.  Young 

90,  560 

V.  Burnham 

200 

214 

Smith's  case 

235 

V.  Castles 

323 

457 

Smythe  v.  Banks 

316 

V.  Chambers 

392 

Snell  V.  Moses 

58 

V,  CofBn 

369 

370 

V.  Westport 

329 

V.  Commonwealth 

217 

Snellgi'ove  v.  Martin 

109,  190 

V.  Cramer 

108 

Snow  V.  Batchelder 

75,  192,  421 

V.  Crooker 

567, 

568 

V.  Eastern  Raih'oad  Co.        348 

V.  Crown 

30 

Snowball  v.  Goodricke 

180 

V.  Cutter 

456 

Snyder  v.  Nations 

366 

V.  Davies 

81 

V.  Snyder 

334,  341,  434 

V.  De  Wruitz 

190 

Society,  &c.  v.  Wheeler 

19 

V.  Downs 

387, 

388 

V.  Young 

46 

V.  Dunbar 

568 

Solaman  v.  Cohen 

320 

V.  Dunham 

568 

Solarete  v.  Melville 

388 

V.  Fell 

239 

Solita  V.  i''arrow 

578 

V.  Fenner 

581 

Solomon  v.  Dreschler 

79 

V.  Gugerty 

440 

V.  Solomon 

206 

V.  Hyndman 

55 

Solomons  v.  Bank  of  England      81  a 

V.  Jeffreys 

281 

Somes  V.  Skinner 

24 

V.  Jeffries 

79 

Soiilden  v.  Van  Rensselaer             430 

V.  Knowelden 

73 

Soule's  case 

343 

V.  Knowlton 

41, 

540 

South  V.  Castles 

455 

V.  Lane 

437 

Southampton     (Mayor 

of)     V. 

V.  Ludlow 

112 

Graves 

474 

V.  Lyon 

180 

Southard  v.  Rexford 

451 

V.  INIaine 

189 

V.  Wilson 

401,  422,  426 

V.  Martin 

109 

Southey  v.  Nash 

432 

V.  Moore 

78 

Southwick  I'.  Stevens 

36,  89,  234 

V.  Morgan             179, 

436, 

469 

V.  Hapgood 

281 

I'.  Nicolls 

546 

Souvereye  v.  Arden 

361 

V.  Nowells 

145 

Soward  v.  Leggatt 

74,81 

V.  N.  Y.  C.  R.  R.  Co 

48 

Sowell  V.  Champion 

358 

V.  Palmer       96,  96  a 

171, 

203 

Spangle  v.  Jacoby 

401 

V.  People 

462 

Sjiargo  V.  Brown      116, 

120,  147,  171 

V.  Potter 

251, 

480 

Sparhawk  v.  Bullard 

38 

V.  Powers 

109 

145 

Spaulding  v.  Hood 

74,  75 

V.  Prager 

386 

409 

•          V.  A'incent 

488 

17.  Prewitt 

145 

Spear  v.  Richardson 

434 

V.  Price 

442, 

444 

Spears  v.  Burton 

41 

r.  Prickett 

465 

V.  Forrest 

462 

V.  Redden 

513 

V.  Ohio 

219 

INDEX  TO  CASES   CITED. 


Ixix 


Speer  v.  Coate 

V.  Plank  Road  Co. 
Spence  v.  Chodwick 
V.  Saunders 
V.  Stewart 
Spenceley  v.  DeWillott 
Spencer  v.  Billing 

V.  Goulding 
V.  Roper 
V.  William 
Spicer  v.  Cooper 
Spiers  v.  Clay 

V.  Morris 
V.  Parker 
r.Willison 
Sprague  v.  Cadwell 

V.  Litherberry 
V.  Oakes 


145 

480 
488 
118 
317 
449,  455 

93 
416 

41 
521 
280 

26 

120 

19,78 

87 
462 

19 
532 


Spring  Garden  Ins.  Co.  v.  Riley    438 

Spring  t'.  Lovett  281 

Springstein  v.  Field  55 

Sprowl  V.  Lawrence  5 

Spurr  V.  Pearson  389 

V.  Trimble  41 

Stables  v.  Eley  208 

Stackpole  v.  Arnold  212,  275,  281,  305 

Stacy  V.  Blake  179 

Stafford  v.  Clark  631,  532 

V.  Rice  385 

Stafford's  (Ld.)  case  235,  255 

Stafford  Bank  v.  Cornell  416 

Stainer  v.  Droitwitch  497 

Stall  V.  Catskill  Bank  387,  430 

Stammers  v.  Dixon  293 

Stamper  v.  Griffin  463 

Standage  v.  Creighton  186 

Standen  v.  Standen  301 

Stanley  v.  White  147,  197 

Stansfi'eld  v.  Levy  76 

Stanton  v.  Wilson  334 

Staples  i:  Goodrich  532 

Stapleton  v.  Nowell  205 

Stapylton  v.  Clough  99,  116,  120 

Stark  V.  Boswell  199 

Starkey  v.  People  161  a 

Starks  v.  The  People  469 

Starkweather  v.  Loomis  505 

V.  Matthews  420 

State  (The)  v.  Adams  34 

V.  Allen  580,  581 

V.  Arnold  81  c 

V.  Avery  440 

V.  Bailey  457 

V.  Bartlett   199,  451,  513 

V.  Beard  23 

V.  Boswell  461 

V.  Brookshire  432 

V.  Broughton  225 

V.  Burlingham  335 


State  (The)  v.  Caffey  70 

V.  Cake          ^  485 
r.  Cameron  156,  161,  331 

V.  Campbell  164 

V.  Candler  376 

V.  Carney  163 

V.  Carr  489,  581 

V.  Cherry  469 

V.  Cleaves  37 

V.  demons  275 

V.  Coatney  349 

V.  Colwell  436 

V.  Cornish  160 

V.  Cowan  220 

V.  Crawford  81  c 

V.  Croteau  49 

V.  Crowell  79 

V.  Davidson  102,  175 

V.  Davis  343,  462 

V.  De  WoH  366 

V.  Dili  319 

V.  Dunwell  6 

V.  Ferguson  160 

V.  Foster  362 
V.  Freeman     220,  220  a, 

,  252  a 

V.  Garrett  254  a 

V.  German  217 

V.  Grant  219 

V.  Harman  219 

V.  Hays  37 

V.  Hay  ward  257 

V.  Hinchman  513,  540 

V.  Hodge  34,  49 

V.  Hooker  165 
V.  Howard  102,  103,  160 

V.  Isham  502 

V.  Jackson  65 

V.  Jolly  337 
V.  Jones           81  c,  254  a 

V.  K 451 

V.  Keeler  217 

V.  Kirby  223 

V.  Knapp  37 

V.  Knight  18 

V.  Lawrence  331 

V.  Lewis  20 

V.  Litchfield  248,  380 

V.  Littlefield  171,  195 

V.  Lull  436 

r.  Mahon  218 

V.  McAlister  51  a,  306 
V.  McDonnell    18,  34,  49 

V.  McKean  382 

V.  McLoud  164 

V.  ]\lolier  257 

V.  Mori'ison  79 

V,  NeiU  344 

V.  Norris  444 


Ixx 


IXDEX  TO  CASES   CITED. 


State  (The)  v.  O'Connor 

481 

r.  Ola 

451 

r.  O'Xeil 

37 

V.  Parish 

227 

I'.  Patterson  18, 

159, 449, 

456 

r.  Peace 

156 

V.  Pettaway 

344 

V.  Pierce 

49 

V.  Pike  34,  49, 

81  c,  440 

V.  PoU 

158,  160 

V.  Powers 

6 

V.  Kawls 

199,  437 

V.  Reed 

462 

V.  Ridgely 

375,  376 

V.  Roberts 

221 

V.  Rood 

488 

V.  Rowe 

469 

V.  Sater 

461 

V.  Shackford 

53 

V.  Shearer 

79 

V.  Shellidy 

108 

V.  Shelton 

156 

V.  Sherborn 

440 

V.  Simmons 

414 

V.  Snow 

49 

V.  Soper 

233 

V.  SpaiTow 

432 

I'.  Stade 

489,  505 

V.  Stanton 

414 

V.  Staples 

37 

V.  Stinson 

370 

V.  Thibeau 

233 

V.  Thomason 

157,  469 

V.  Tilghman 

49,  159 

V.  Tirrell 

156,  162 

V.  Tuesday 

161 

V.  Upham 

37 

V.  Vaigneur 

221 

V.  Vittum 

372 

V.  Welch 

342 

r,  Wentworth 

229 

V.  AVhisenhurst 

371 

V.  Whittier 

367 

r.  AVilliams 

0,  37 

V.  "Worthing 

335,  363 

St.  Clair  v.  Shale 

109 

Stead  V.  Ileaton 

150 

Steams  v.  Hall 

302,  304 

V.  Ilendersass 

109 

V.  Stearns 

528 

Stebbing  v.  Spicer 

38 

Stebbins  ik  Sackett 

422,  423 

Steed  V.  Oliver 

361 

Steel  V.  Prickett 

130 

Steele  v.  Smith 

548 

V.  Stewart 

230 

V.  AVorthington 

26 

Steers  i".  Cawardiue 

397 

Stein  V.  Bowman  19,  334,  337 

c.  R.  R.  Co.  108 

V.  Weidman  254 

Steinkellen  v.  Newton  88,  438 

Steinmetz  r.  Cm-rie  430 

Stephen  v.  State            .  5 

Stephens  v.  Foster  466 

V.  Vroman         96,  200,  202 

V.  Winn  268 

Stephenson  v.  Bannister  506 

Sterling  i\  Potts  558 

Stern  v.  R.  R.  Co.,  C.  C.  P. 

Phila.  180 

Sterrett  v.  Bull  117 

Stevens  v.  McXamara  41 

IK  Pin  nay  89 

V.  Taft  20 

V.  Thacker  184 

V.  AVests  38 

Stevens'  Hospital  v.  Dyas  564 

Stevenson  v.  JNIudgett  429 

V.  Nevinson  505 

Stewart  v.  Alison  498 

V.  Cauty  49 

r.  Doughty  271 

V.  Huntington  Bank  332 

V.  Kipp  392,  409 

V.  Saybrook  331 

Stewartson  v.  AVatts  113 

St.  George  v.  St.  Margaret        28,  40 

Stiles  V.  Eastman  259 

V.  The  Western  Railroad 

Co.  110,  113 
Still  V.  Hoste  289 
Stimmel  v.  Underwood  387,  388 
Stitt  V.  Huidekoper  74 
St.  ]\Iary's  College  v.  Attorney- 
General  46 
Stobart  v.  Diyden  126 
Stockbridge  v.  W.  Stockbridge        21 
Stockdale  v.  Hansard  6 
V.  Young  558 
Stockfleth  V.  Be  Tastet  193 
Stockham  r.  Jones  358 
Stockton  V.  Demuth         113,  442,  443 
Stoddard  v.  Doane  174 
r.  Palmer  56 
Stoddart  i\  Palmer  70 
V.  Manning  452 
Stoever  v.  AA'hitmau  280 
Stokes  V.  Dawes  104,  556 
r.  People  18 
r.  State  461 
V.  Stokes  115,  147 
Stonard  v.  Diinkin  207 
Stone  V.  IVihh  350 
V.  151ackburne  421 
r.  ("lark  293,  30l 
V.  Crocker  471 


INDEX  TO   CASES   CITED. 


Ixxi 


518 
280 
56,  68 
283 
200 
385 
55 
287 
364,  386 
485 
346 
28-2 
266 
288 
485 
288 
569 
196 
205 
513 
73 
284 
457 
421 
451 
302 
252  a 
293 
572 
577 
Straton  v.  Rastall  207,  212,  305 

Streeter  v.  Bartlett  569 

Strickler  v.  Todd  17 

Strode  v.  McGowan  35 

V.  Winchester  47,  266 

Strong  V.  Bradley  513 

Strother  v.  Barr  87,  96 

Strutt  V.  Bovingdon  531 

Studdy  V.  Sanders  210,  507 

Stukeley  v.  Butler  60,  301 

Stump  V.  Napier  385 

Sturdy  v.  Arnaud  303 

Sturge  V.  Buchanan  116,  201 

Sturm  I'.  Jeffries  562 

Sullivan  r.  Kelley  28 

Summers  v.  jNloseley  445 

Summevsett  r.  Adamson  203 

Sumner  v.  Child  17 

V.  Sebec  484 

V.  Williams  101 

Sussex  (Earl  of)  v.  Temple  189 

Sussex  Peerage  case  99,  104,  147 

Sutton  V.  Bishop  413 

V.  Davenport  37 

V.  Kettell  305 

V.  Sadler  42 

Suydam  v.  Jones  302 

Swain  v.  Lewis  561 

Swallow  V.  Beaumont  58,  66,  68 


Stone  V.  Forsyth 

V.  Hubbard 

V.  Knowltoa 

V.  MetcaH 

V.  Ramsay 

V.  Vance 

V.  Varney 
Stoner's  appeal 
Stoner  i;.  Byron 

V.  EUis 
Stoop's  case 
Stoops  V.  Smith 
Storer  v.  Batson 

V.  Elliot  Fire  Ins.  Co. 

V.  EUis 

V.  Freeman 
Storey  v.  Lovett 
Storr  et  al.  v.  Scott 

V.  Finnis 
Story  V.  Kimball 

V.  Watson 
Stouffer  V.  Latshaw 
Stout  V.  Russell 

V.  Wood 
Stover  V.  People 
Stowell  V.  Robinson 
Straker  v.  Graham 
Stralding  v.  Morgan 
Strange  v.  Dashwood 
Stranger  v.  Searle 


Sweeny  v.  Prom.  L.  Ins.  Co.  207 

Sweet  V.  Lee  282,  299 

V.  Shei-man  469 

Sweigart  v.  Berk  529 

Swift  V.  Bennett  116 

V.  Dean  421 

V.  Eyi'es  301 

V.  Mass.   Mut.    Life    Ins. 

Co.  108 
V.  Stevens  558 
Swing  V.  Sparks  118 
Swinnerton  v.  Marquis  of   Staf- 
ford 21,  142,  485 
Swire  v.  Bell  572 
Sybra  v.  AVhite  183 
Syers  v.  Jonas  293 
Sykes  v.  Dunbar  252 
Sylvester  v.  Crapo  190 
SjTnmons  v.  Knox  60 
Symonds  v.  Carr  66 
V.  Lloyd  292 


T. 

Talbot  V.  Clark 

V.  Seeman 
Tallman  v.  Dutcher 
Tarns  V.  Bullitt 
Taney  v.  Kemp 
Tanner  v.  Taylor 
Tannett's  case 
Taplin  v.  Atty 
Tappan  v.  Abbott 
Tarleton  v.  Tarleton 


521 

487,  491 
421,  426 
51  a 
452 
437 
65 
560 
197 
543 


Taunton  Bank  i'.  Richardson         349 

Tawney  v.  Crowther  268 

Tayloe.v.  Riggs  82,  349 
Taylor  v.  Bank  of  Alexandria        489 

V.  Bank  of  Illinois  489 

V.  Barclay  4,  5,  6 

V.  Beck  385 

V.  Blacklow  240 

V.  Briggs  278,  279,  292 

V.  Bryden  548 

V.  Cook  139 

V.  Croker  196,  207 

V.  Diplock  30 

V.  Dundass  521 

V.  Foster  186,  239 

V.  Graham  6 

V.  Henry  484 

In  re  107,  108 

V.  Johnson  565 

V.  Lawson  432 

V.  Luther  385 

r.  Moseley  564 

V.  Ross  268 

r.  Sayre  281 


Ixxii 


INDEX  TO   CASES   CITED. 


Taylor  v.  Tucker 
V.  Weld 
V.  Williams 
V.  Willans 
Teachart  v.  People 
Teal  V.  Auty 
Teall  V.  Van  Wyck 
Teese  v.  Huntington 
Tempest  v.  Kilner 
Templeton  v.  Morgan 
Tenbrook  v.  Johnson 
Tennant  v.  Hamilton 
V.  Strachan 
Tennery  v.  Pippinger 


118 

284 

319 

49,  101,  186 

225 

271 

572 

2,461 

267 

6 

118 

449 

392 

81c 


Tennessee  (Bank  of)  v.  Cowan       115 

Tenny  v.  Evans  179 

Terrill  v.  Beecher  118 
Terrett  v.  Taylor                 23,  24,  331 

Terry  v.  Belcher  337 

Tewksbury  v.  Bricknell  72 

Texas  v.  Chiles  329 

Texira  v.  Evans  508  a 

Thallhimer  V.  BrinckerhofE  113 

Tliayer  v.  Crossman  385,  401 

V.  Stearns  484 

V.  Thayer  53 

Theakston  v.  Marson  260  a 

Thelluson  v.  Cosling  491 

Theobald  v.  Tregott  416,  417 
The  Reformed  Dutch  Church  v. 

Ten  Eyck  126 

Thomas  &  Henry  v.  U.  States        323 

Thomas  Jefferson  (The)  6 

Thomas  v.  Ainsley  96 

V.  Cummins  319 

V.  David  432,  450 

V.  Dyott  118 

V.  Graves  .     260  a 

V.  Hargrave  341 

V.  Jenkins  139 

V.  Ketteriche  550 

V.  Newton  451 

V.  Robinson  505 

V.  Tanner  506 

V.  Thomas  197,  289,  291 

V.  Turnley  575 

Thomas's  case  228 

Thompson  v.  Armstrong  389 

V.  Austen  192,  201 

V.  Bullock  144 

V.  Davenport  196 

V.  Donaldson  550 

V.  Freeman  102,  341 

V.  Ketchum  281 

V.  lyockwood  284 

V.  JMonrow  488  a 

V.  Musser  489 

V.  Rol)ert3  531 

V.  State  469 


Thompson  v.  Stevens 

120 

152 

V.  Stewart 

5 

514 

V.  Travis 

558 

V.  Whitman 

540 

Thompson's  case 

220 

Thomson  v.  Bell 

284 

Thorington  v.  Smith 

282 

Thorndike  v.  Boston 

108 

V.  Richards 

301 

Thornes  v.  White 

310 

Thornton  v.  BlaisdeU 

256 

356 

V.  Jones 

66 

r.  Royal  Ex.  Ass.  Co.    440 

V.  Wykes  69 

Thornton's  case  220,  222 

Thorpe  v.  Barber  357 

V.  Cooper  532 

V.  Gisbimie  577 

Throgmorton  v.  Walton  41,  81 

Thurman  v.  Cameron  573 

Thurston  v.  Masterson  21 

V.  Whitney  369 

Tibeau  v.  Tibeau  568 

Tickel  V.  Short  194 

Tiernan  v.  Jackson  172 

Tiley  v.  Cowling  195,  527 

Tilghman  v.  Fisher  196 
Tillotson  V.  Warner        501,  508,  509 

Tillson  V.  Moulton  296  a 

V.  Smith  296  a 
Tillou  V.  Clinton,  &c.  Ins.  Co.       564 

Tilton  V.  Beecher  37,  334 

Timlay  v.  Porter  319 

Tindall,  in  re  41 

Tinkham  v.  Arnold  17 

Tinkler  v.  Walpole  494 

Tinkler's  case  157,  158 

Tinn  v.  Wharf  Co.  37 

Tisdale  v.  Conn.  Ins.  Co.  41 

V.  Conn.  L.  Ins.  Co.  550 

Titford  (,'.  Knott  581 

Title  V.  Grevett  384 

Titlow  c.  Titlow  42 

Titus  y.  Ash  06,461,462 

Tison  V.  Smith  6 

Tobin  V.  Shaw  37,  558 

Tod  V.  Earl  of  Winchelsea      163,  272 

11.  Stafford  385 

Todernier  v.  Aspinwall  40 

Tolman  v.  Emerson  142,  144 

Tome  V.  Park,  Br.  R.  R.  581 

Tomkies  v.  Reynolds  108 

Tomlinson  v.  Borst  118 

Tompkins  v.  Ashby  •     551 

V.  A ttor.- General  484 

V.  Curtis  430 

I'.  Phillips  207 

V.  Saltmarsh  108 

Tong's  case  233 


INDEX  TO  CASES   CITED. 


Ixxiii 


Tooker  v.  D.  of  Beaufort  6 

Toomer  v.  Gadsden  117 

Topham  v.  McGregor        93,  437,  438 

Tousley  V.  Barry  190 

Towle  V.  Blake  118 

Town  V.  Xeedham  421 

Townley  v.  Woolley  118 

Tbwns  V.  Alford  ^     435 

Townsend  v.  Bush  379,  385 

V.  Downing  391,395 

V.  Graves  54 

V.  Pepperell  115 

V.  The  State  49 

V.  Weld  281 

Tracy  v.  Peerage  581 

Tracy  Peerage  Case  440 

Trant's  case  160 

Travis  v.  January  246 

Treat  v.  Strickland  109 

Tregany  v.  Fletcher  6 

Trelawney  v.  Coleman  40,  102 

V.  Thomas  387 

Tremain  v.  Barrett  310 

V.  Edwards  118 

Trevivan  v.  Lawrence         22,  23,  531 

Tripp  V.  Gery  86 

Trischet  v.  Hamilton  Ins.  Co.        463 

Trotter  v.  Mills  502 

Trowbridge  v.  Baker  195 

TroweU  v.  Castle  511,  564 

Trowter's  case  161 

Truslove  v.  Bm-ton  186 

Trustees,  &c.  v.  Bledsoe  114 

V.  Peaslee  290,  291 

Trustees  Ep.    Ch.   Newbern    v. 

Ti-ustees  Newbern  Acad.  21 

Truwhitt  v.  Lambert  89 

Tucker  v.  Barrow  193 

V.  Mass.  Cent  R.  R.  440 

V.  MaxweU  212,  305 

V.  Peaslee  51a 

V.  State  6 

V.  Tucker  75 

V.  Welsh  89,  462 

Tufts  V.  Hayes  207 

TuUis  V.  Kidd  440 

Tullock  V.  Dunn  176 

Turner  v.  Ambler  49 

V.  Austin  394 

V.  Coe  421 

V.  Crisp  121 

V.  Eyles  56 

V.  Lazarus  356 

V.  Pearte  421 

V.  Twing  118 

V.  Waddington  506 

V.  Yates  182,  560 

Tumey  v.  The  State  434 

Turquand  v.  Knight  239 


Tuttle  V.  Brown 
Tutton  V.  Drake 
Tuzzle  V.  Barclay 
Twambly  v.  Henley 
Twiss  V.  Baldwin 
Tyler  f.  Carlton 
V.  timer 
V.  Wilkinson 
Tyer's  case 
Tyrwhitt  v.  Wynne 


113 

497 

51a 

384,  397 

60,  64 

26 

180,  394, 539 

17 

65 

584 


U. 

Udderzook's  case  6,  581 

Ulen  V.  Kittredge  269 

Ulmer  v.  Leland  78 

UnderhiU  v.  Wilson  180 

Underwood  v.  McVeigh  49 

V.  Wing  30 

Union  Bank  v.  Knapp   118,  168,  368, 

474 
V.  Owen  430 

Union  Mut.  Ins.  Co.  v.  Wilkin- 
son 281 
Unis  V.  Charlton's  Adm.  462 
United  States  v.  Amedy  489 
V.  Anthony  49 
V.  Batiste  49,  97 
V.  Benner  479 
V.  Breed  280 
V.  Britton  65,  84 
V.  Buford  73,  498 
V.  Burns  5,  6 
V.  Cantrill  300 
V.  Castro  142,  143,  485 
V.  Chapman  221 
V.  Cuslunan  539  a 
V.  Edme  316 
V.  Flowery  51  a 
V.  Gibert  13  a,  84,  233, 
495 
V.  Gooding  233 
V.  Hau-  Pencils  241 
V.  Hanway  256 
V.  Hayward  79,  80 
V.  Johns  4,  485,  489 
V.  King  5,  6 
V.  Leffier  284,  385 
V.  Macomb  164,  165 
V.  McXeal  65,  70 
V.  Messman  581 
f .  Mitchell  479 
V.  Moore  311 
V.  Moses  250 
V.  Murphy  350,  412 
V.  Xelson  368 
V.  Xott  219 
V.  Palmer  4 


Ixxiv 


INDEX  TO   CASES   CITED. 


United  States  v.  Percheman  485 

V.  Porter  65 

r.  Reyburn     82,  83,  92 

r.  Reynes  6 

V.  Smith  430 

V.  Spaulding  566 

r.  Sutter  84 

V.  Teschmaker  6 

V.  Van  Sickle  461 

V.  Wagner  4 

V.  Wigging  33 

V.  Wilson  412 

r.  Wood    165,  257,  258 

U.  S.  Bank  v.  Corcoran  2 

V.  Dandridge  21 

V.  Dunn  40,  83 

V.  Glass  Ware  385 

V.  Johnson  489 

V.  La  Vengeance 


V.  Stearns 
Utica  (Bk.  of)  v.  Hillard 


416 

385,  474, 

559 

V.  Mersereau  240,  243, 

422 

"  V.  SmaUey  430 

Utica  Ins.  Co.  v.  Cadwell  430 


V. 


Vacher  v.  Cocks  108 

Vail  V.  Lewis  60 

V.  Nickerson  371 

V.  Rice  260  a 

V.  Smith  501 

V.  Strong  197 

Vaillant  v.  Doderaead  243,  248 

Vaise  v.  Delaval  252^a 

Valentine  v.  Piper  575 

Vallance  v.  Dewar  292 

Valton  V.  National  Loan,  &c.  Soc.  322 

Van  Buren  v.  Cockbm-n  165 

V.  AVells  51  a 

Vanbuskirk  v.  Mullock  489 

Vance  v.  Reardon  501 

V.  Schuyler  573 

V  andenheuvel  V.  U.  Ins.  Co.  543 

Vanderwerker  v.  The  People  6 

Van  Deusen  v.  Frink  429 

V.  Slyck  358 

Vandine  v.  Burpee  440 

Van  Dyke  i'.  Van  Buren  46 

Vane's'  (Sir  Henry)  case  256 

Vanhorne  r.  Dorrance  564 

Van  Kuren  i\  Parmelee  112 

Van  Ness  v.  Packard  2 

Van  Nuys  r.  Terhune  389 

Van  OmVron  v.  Dowick  40,  479 

Vanqueliu  c.  Bonard  546 


Van  Reimsdyk  v.  Kane  112, 174, 177, 

178 
Van  Sandau  v.  Turner  6 

Van  Shaack  v.  Stafford  427 

Van  Valkenburg  v.  Rouk  284 

Van  Vechten  v.  Greves  173 

Van  Wyck  v.  Mcintosh  578 

Vunzant  ;;.  Kay  395 

Vass's  case  160,  161  a 

Vasse  V.  Mifflin  559 

Vau  i\  Corpe 
Vaughan  v.  Fitzgerald 

V.  Hann 

V.  Martin 

V.  WorraU 
Vaughn  v.  Perrine 
Vaux  Peerage  Case  (The) 
Vedder  t'.  Wilkina 
Venable's  case 
Venning  v.  Shuttleworth 
Vent  V.  Pacey 


Verry  v.  Watkins 
Vicary  v.  Moore 
Vicary's  case 
Villiers  v.  Villiers 
Vinal  V.  Burrill 
Vincent  v.  Cole 
Viney  v.  Bass 
Vining  v.  Baker 
VioletiJ.  Patton 
Voce  ('.  Lawrence 
Volant  V.  Soyer 
Vooght  V.  AMnch 
Vosburg  i\  Thayer 
Vose  V.  Handy 
V.  ^lorton 
Vowels  V.  Miller 
V.  Young 


361 

552 

214 

438 

421 

458 

497 

558 

257  a 

399 

240  a 

54 

303 

174 

84 

87,  112,  356 

88,  304 

62 

34 

268 

322 

246 

531 

118 

301 

523,  528 

60,  72 

103,  105,  334,  342 


Waddington  v.  Bristow 
V.  Cousins 
Wadley  v.  Bayliss 
Wafer  r.  Ilempkin 
Wagers  r.  Dickey 
Waggoner  r.  Riclimond 
Wagner's  case 
Wagstaff  V.  Wilson 
Wain  L-.  Warlters 
Waite  ('.  ]\Ierrill 
Wake  V.  Hartop 

V.  Lock 
Wakefield  v.  Ross 
Wakefield's  case 
Wakeley  v.  Hart 
WalcotV.  Alleyn 
Walden  v.  Canfield 


278,  578 

573,  580 

293 

168 

165 

118 

6,  156,  162 

186 

268 

427 

284  a 

396,  421,  426 

328,  339,  369 

339,  343,  374 

358 

42 

6 


INDEX  TO   CASES   CITED. 


Ixxv 


Walden  v.  Craig 

r.  Sherburne 

Waldridge  v.  Kenison 

Waldrou  v.  Tattle 
I'.  Ward 

Walker  v.  Broadstock 
V.  Crawford 
V.  Coimt^«s     of 

champ 
V.  Dunspaugh 
V.  Ferrin 
V.  Forbes 
V.  Giles 
V.  Hunter 
V.  Kearney 


73 
112 

192 
130 
243 
109,  189 
284 
Beau- 

131 
435 
427 
480 
409 
49 
374 


V.  Protection  Ins.  Co 

r.  Sa'sv^'er 

V.  Stephenson 

V.  Wallcer 

V.  Welch 

V.  Wheatley 


V.  Wildnian 
V.  AVingfield 
V.  Witter 
Walker's  case 
Wall  V.  McN"amara 
Wallace  v.  Cook 
V.  Rogers 
V.  Small 
V.  Townsend 
V.  Twyman 
Waller  v.  School  District 
WaUis  V.  Littell 

V.  MiuTay 
Walsh  V.  Dart 
Walsingham     (Ld.)     v. 

ricke 
Walter  v.  BoUman 
V.  Hayues 
Walters  v.  Mace 
V.  Rees 
V.  Short 
Walton  V.  Coulson 
V.  Green 
V.  Shelley 
V.  Tomlin 
V.  Walton 
Wambough  v.  Shenk 
Wandless  v.  Cawthorne 
Ward  V.  Apprice 
V.  Dulaney 
f.  Fuller 
V.  Hay  don 
V.  Howell 
V.  Johnson 
V.  Lewis 
V.  Pomf  ret 
V.  Sharp 
r.  The  State 


440 
425 
54 
165 
66 
302 
237,  240 
485 
546 
189 
532 
484,  493 
305 
192 
86 
420 
84 
284  n 
559 
43 
,     Good- 
240  a,  244 
117 
40 
04 
317 
564 
21 
110,  185,  341 
383,  385,  389 
356 
260 
41 
95,  422 
349 
35 
484 
357 
112 
539 
38 
155 
452 
161a 


Ward  V.  Wells  572 

V.  Wilkinson  398 

Warde  v.  Warde  241 

Wardell  v.  Eden  173 

V.  Fermor  572 

Wardle's  case  65 

Ware  v.  Brookhouse  109 

V.  Gay  81  c 
V.  Havward  Rubber  Co.  292 
V.  Ware             52,  77,  449,  462 

Waring  i'.  Waring  365 

AVaruer  v.  Harder  485 

V.  Price  116,  120 

Warren  v.  Anderson  57 o 

V.  Charlestown  331 

V.  Comings  531,  532 

V.  Flagg  505 
17.  Greenville     119,  147,  149, 
150,  1.54 

V.  Lusk  488  a 

V.  Nichols  165 

V.  Warren  40 

V.  Wheeler  277 

Warrick  v.  Queen's  College  129 
Warrickshall's  case  214,  215,  219,  231 

Warriner  i'.  Giles  484 

Warrington  v.  Early  568 

Warwick  v.  Bruce  271 

V.  Foulkes  53 

Washburn  v.  Cuddihy  497 
Washington  S.  P.  Co.  v.  Sickles    532 

Waterman  v.  Johnson  288,  301 

WatertowTi  v.  Cowen  175 
Watkins  v.  Holman        479,  480,  482 

V.  Morgan  73 

V.  Towner s  27 

Watson  V.  Blaine  26 

V.  Brewster  104 

V.  England  41 

V.  Hay  6 

V.  King  41,  186 

V.  Lane  207 

V.  McLaren  430 

V.  Moore  55,  201 

V.  Tarplev  49 

V.  Threlkeid  27,  207 

V.  Wace  204,  207 

Watts  V.  Friend  271 

V.  Howard  118 

V,  Kilburn  572 

V.  Lawson  19- 

V.  Thorpe  181 

Waugh  V.  Bussell  69,  567 

Wayman  v.  Hillard  li^2 

WaVmell  v.  Read  284,  488 

Weakly  t'.BeU  207 

Weall  V.  King  58,  04 

Weatherhead  v.  Sewell  288 

Weaver  v.  McElhenou  5 


Ixxvi 


INDEX  TO  CASES   CITED. 


Webb  V.  Alexander  513 

V.  Man.  &  Leeds  R.  R.  Co.  440 
V.  Pajre  310 

V.  Smith  179,  248 

V.  St.  Lawrence  575 

Webber  v.  Eastern  Railroad  Co. 

441,540 

Webster  v.  Clark  118,  436 

V.  Hodgkins  8P,  282 

V.  Lee  447,  532 

V.  Vickers  385 

V.  "Webster  115 

V.  Woodford  284 

Wedge  V.  Berkeley  49 

Wedgewood's  case  484,  493 

AVeed  v.  Kellogg  ISO,  322 

Weeks  v.  Lowerre  163 

V.  Sparke     128.  129,  130,  136, 

137, 138,  145,  146 

Weems  v.  Disney  145 

We.giielin  v.  Weguelin  321 

Weidman  v.  Kohr  109,  189 

Weidner  v.  Schweigart  38 

Weiglyi'.  Weir  26 

WelboVn's  case  158,  160 

Welch  V.  Barrett  115,  116,  147 

V.  ]Mandeville  173 

V.  Seaborn  38 

Weld  V.  Nichols  539 

Welden  v.  Buck  423 

Welford  v.  Beezely  268 

Welland  Canal  Co.  v.  Hathaway    86, 

96,  203,  204 

Wellerr.  Gov.  Found.  Hosp.  331,  333 

Wells  y.  Compton       195,  301,  527  a, 

539 

V.  Fisher  339 

V.  Fletcher  207,  339 

V.  Greeley  23 

V.  Jesus  College  138 

r.  Lane  333 

V.  Porter  293 

V.  Stevens  513 

V.  Tucker  338 

Welsh  V.  Rogers  323 

Wendell  v.  Al>bott  145 

V.  George  385 

Wentworth  v.  Lloyd  37,  240 

Wertz  V.  May  469 

West  V.  Baxendale  49 

V.  Davis  97 

V.  Randall  392 

V.  State  35,  577 

V.  Steward  568  a 

West  Boylston  c.  Sterling  323 

Westlnn-y  v.  Aberdein  441 

West  Cambridge  v.  Lexington        109 

Westfield  V.  ^Varren  107 

Weston  V.  Barker  173 


Weston  V.  Chamberlain 

281 

V.  Emes 

281 

V.  Penniman 

494 

Wetherbee  v.  Dunn 

6 

Wetmore  v.  MeH 

108 

"NMialey  v.  State 

37 

Whateley  v.  Menheim 

531 

Whatley  v.  Fearnley 

392 

Wheat  V.  State 

81c 

Wheater's  case 

226 

Wheatley  v.  "VVilliams 

245 

Wheelden  v.  Wilson 

53,  329 

Wheeler  v.  Alderson 

101 

V.  Hambright 

180 

V.  Hatch 

437 

V.  Hill 

237 

V.  McCorrister 

189 

V.  Moody 

6 

i".  Webster 

488  a 

Wheeling's  case 

217 

Wheelock  v.  Doolittle 

113 

Whelpdale's  case 

284 

Whipple  V.  Foot 

271 

V.  \^'alpole 

440 

Whitaker  v.  Bramson 

70 

V.  Salisbury 

572 

V.  Smith 

58 

Whitamore  v.  Waterhouse 

394,  427 

Whitbeck  v.  Whitbeck 

26 

Whitcher  v.  Shattuck 

101 

Whitcomb  v.  Whiting 

112,  174 

Whitcomb's  case 

309 

White  V.  Ballou 

440 

V.  Coatsworth 

532 

V.  Crew 

260 

V.  Everest 

452 

V.  Foljambe 

46 

V.  Hale 

112,  174 

V.  Hawn 

371 

V.  Hill 

358 

V.  Judd 

310 

V.  Lisle  130,  137,  138 

V.  Parkin  303 

V.  Patten  24 

V.  Philbrick  533 

V.  Proctor  269 

V.  Sayer  294 

V.  Trust.  Brit.  Museum     272 

V.  Wilson    42,  58,  68,  81,  281 

AVhite's  case  65,  217,  328,  365 

Whitehead  v.  Scott  89,  101 

V.  Tattersall  184 

Whitehouse  v.  Atkinson         394,  420 

V.  Bickford  145, 485,  570 

"WTiitehouse's  case  343 

AVhitehouse  v.  Hemmant  584 

Whiteley  v.  Crowter  559 

Whitelocke  v.  Baker        103, 104,  131 

V.  Musgrove  575 


INDEX  TO  CASES   CITED. 


Ixxvii 


Wliitesell  v.  Crane  348 

Whiteside's  appeal  41 

Whitfield  V.  CoUingwood  564 

Whitford  v.  Tutin  87 

Whitlock  V.  Ramsay  69 

Whitmarsh  v.  Angle  440 

V.  AValker  271 

Whitmer  v.  Frye  508 

Whitmore  v.  S.  Boston  Iron  Co.   292 

V.  Wilks  347 

Whitney  v.  Bigelow  121 

V.  Boardman  280 

V.  Ferris  177 

V.  Heywood  323 

Whiton  V.  Albany  City  Ins.  Co.     479 

Whittaker  v.  Garnett  26 

V.  Wisley  19 

Whittemore  v.  Brooks  572 

Whittier  v.  Franklin  55 

V.  Smith  207 

'V\Tiittuck  V.  Waters  493 

Whitwell  V.  Scheer  73 

V.  Wyer  201 

Whyman  v.  Garth  569 

Wickens  v.  Goatley  6 

Wickes  V.  Caulk  564 

Wicks  V.  Smallbroke  375 

Wiggin  V.  Lowell  333 

Wigglesworth  v.  Dallisou  294 

V.  Steers  284 

Wike  V.  Lightner  461 

Wikoff's  appeal  564 

Wilbur  I'.  Selden  115,  147,  163, 

165 

V.  Strickland  232 

V.  Wilbur  571 

Wilcocks  V.  Phillips  488 

Wilcox  V.  Emerson  275 

V.  Smith  83 

Wilde  V.  Armsby  564 

Wilder  v.  Cowles  74 

Wiley  V.  Bean  572 

V.  Moor  568  a 

Wilkins  v.  Stidger  197 

Wilkinson  v.  Johnson  566 

V.  Lutwidge  196 

V.  JNIorely  440 

V.  Scott  26,  305 

V.  Yale  323 

Willard  v.  Harvey  508 

V.  Wickham  427 

Williams  v.  Amroyd  541 

V.  Baldwin  254 

V.  Bartholomew  207 

V.  Bridges  180,  181 

V.  Bryant  69 

V.  Byrne  49 

V.  Cheney        171,  195,  552 

V.  CaUender  55 


Williams  v.  E.  India  Co.    35,  40,  78, 

80 

V.  Eyton  20 

V.  Geaves         115,  150, 151 

r.  Gilman  288 

V.  Goodwin  430 

V.  Hing.  &c.  Turnp.  Co.  78 

V.  Junes  27,  182 

V.  Johnson  342 

V.  Mundie  240 

V.  Ogle  65 

V.  State  164 

V.  Stevens  392 

V.  Thomas  74,  192 

V.  Van  Tuyl  568 

V.  Walbridge  385 

V.  Walker  443 

V.  Wetherbee  485 

V.  Wilkes  502 

V.  AVillard  165 

V.  Williams  45,  200 

Williams's  case  311 

Williamson  v.  Allison  51,  60,  63 

V.  Henley  205 

V.  Scott  212 

Willingham  v.  Matthews  316 

Willings  V.  Consequa  354 

Willis  V.  Barnard  102 

V.  Jernegan  197 

V.  McDole  558 

V.  Quimby  104 

Willis's  case  255 

Williston  V.  Smith  55 

Willoughby  v.  Willoughby  4,  5 

Wills  V.  Judd  354 

Wilmer  v.  Israel  118 

Wilson  V.  Allen  46 

V.  Betts  144 

V.  Boerem  156 

V.  Bowie  89 

V.  Butter  22 

V.  Calvert  201 

V.  Carnegie  195 

V.  Conine  511 

V.  Gary  409 

V.  Goodin  118 

V.  Hodges  41,  81 

V.  McCuUough  434 

V.  Niles  548 

V.  Rastall    237,  239,  243,  247 

V.  Rogers  473 

V.  State  461 

V.  Troup  237,  241 

V.  Turner  27 

V.  Wilson  118 

Wilson's  case  225 

Wilton  V.  Girdlestone  521 

V.  Webster  102 

Wiltzie  V.  Adamson  197, 198 


Ixxviii 


INDEX   TO   CASES   CITED. 


Wiiians  r.  Dunham  511 

V.  N.  Y.  &  E.  R.  R.  440 

Winch  V.  Keeley  172 

Wiuchell  V.  Edwards  37 

Wing  V.  Abbott  84 

V.  Angrave  30 

Winn  V.  Chamberlain  292,  293 

V.  Patterson  21,  142 

Winnipiseogee  Lake  Co.  v.  Young    6 

AVinship  v.  Bank  of  U.  S.        148,'  167 

Winslow  V.  Kimball  341 

"NVinsmoie  v.  Greenbank  183 

Wiusor  v.  Dillaway  118 

V.  Pratt  273 

Winter  v.  Butt  467 

V.  Wroot  102 

Wishart  v.  Downey  569 

Wishaw  V.  Barnes  408 

Withee  v.  Rowe  581 

Withers  v.  Atkinson  568 

V.  Gillespy  563 

Withnell  v.  Gartliara  138,  293 

Witmer  v.  Schlatter  539 

Wltnash  v.  George  116,  150,  187 

Wogan  V.  Small  440 

Woicott  c.  Hall  55 

Wolf  V.  Washburn  498,  513 

V.  Wyeth  165 

WoUey  V.  Brownhill  347 

Wood  V.  Braddick  112,  177 

V.  Braynard  392 

V.  Cooper  437 

V.  Davis  524 

V.  Drury  572 

V.  Fitz  6 

V.  Foster  109 

V.  Hickok  260  a 

V.  Jackson  529,  531 

V.  Le  Baron  532 

V.  Mackinsoa  445 

V.  Manu  461 

V.  Xeale  317 

V.  Pringle  76 

V.  Watkinson  547 

V.  Whiting  305 

Woodbeck  v.  Keller  255,  257 

Woodl)ri(lge  v.  Spooner  281 

Woodcock's  case  158 

Woodcraft  v.  Kinaston  502 

Woodford  V.  Asliley  70 

Woodman  v.  Buchanan  53 

V.  Coolbroth  571 

V.  Lane  301 

Woodruff  V.  Taylor  546 

V.  Westcott  190,  353 

V.  Woodruff  527  a 

Woods  V.  Banks  113,  508 

I'.  Keyes  165 

V.  Saw  in  287 


Woods  V.  Woods  41,  240  a 
Woodsides  v.  The  State  156 
Woodstock  (Bank  of)  v.  Clark       108 
Woodville  v.  Barker  558 
Woodward  v.  Cotton  481 
V.  Larking  211 
V.  Newhail  197,  356 
V.  Picket  268 
Woolam  V.  Hearn  276 
Woolway  v.  Rowe  190,  191 
Wooster  v.  Butler  145,  287 
V.  Lyons  96 
AVorcester  Co.  Bank  v.  Dorches- 
ter, &c.  Bank  81  a 
Worrall  v.  Jones      330,  353,  354,  356 
Worthington  v.  Hyler  300,  301 
Wright  V.  Barnard  5 
V.  Beckett  444,  467 
V.  Caldwell  348 
V.  Court  111 
V.  Crookes  281,  304 
V.  Delafield  488  a 
V.  Foster  74 
V.  Hicks  462 
V.  Howard  17 
V.  Littler  156 
V.  Morse  276 
V.  Netherwood  30 
V.  Phillips  6 
V.  Sarmuda  30 
V.  Sharp  118 
V.  Tatham  82,  101,  108,  163, 
164,  535,  553,  584 
V.  Willcox  469 
V.  Wi-ight  272 
Wyatt  V.  Gore  251 
V.  Hodson  174 
V.  Lord  Hertford  207 
Wyer  r.  Dorchester,  &c.  Bank       81  a 
Wylde's  case  288 
Wyndhara  v.  Chetwynd  419 
Wynn  v.  Patterson  658 
Wynne  v.  T}T:whitt         150,  154,  570 


Y. 


Yabsley  v.  Doble 

180 

Yandes  v.  Lefavour 

112 

Yarborough  v.  Moss 

201 

Yardley  v.  Arnold 

421 

Yarley  v.  Turnock 

72 

Yates  V.  Pyra 

292 

V.  Thompson 

49 

Yates's  case 

257 

Yeates  v.  Pirn 

294 

Yoatman,  ex  parte 

238 

V.  Dempsey 

319 

V.  Hart 

51a 

INDEX  TO  CASES   CITED. 


Ixxix 


Yeaton  v.  Fry  5,  414 

York  V.  Blott  399 

V.  Gribble  402 

V.  Pease  74 

York's  case  18 

York,  &c.  R.  R.  Co.  v.  Winans         6 

Yoter  V.  Sanno  251 

Young  V.  Bairner  76,  385 

V.  Black  5:32 

r.  Chandler*  506 

V.  Commonwealth  219 

V.  Dearborn  165 

V.  Honner  580 

V.  Raincock  22 


Y"oung  V.  Richards 
V.  Smith 
V.  The    Bank 

andria 
V.  Wright 
Youqua  v.  Nixon 
Yrissarri  v.  Clement 


Zollicoffer  v.  Turney 
Zouch  '-'.  Clay 
Zouch  Peer. 


341 

180 

of    Alex- 

480,  489,  490 

27,  186 

304 

4 


452 

567,  568 
134 


This  case  is  reported  in  13  B.  Mon.  252,  and  not  as  cited  in  note  to  section  506. 


PART    I. 

OF   THE   NATURE   AND    PEINCIPLES 
OF   EYIDENCE. 


TREATISE 


OK 


THE    LAW    OF    EYIDENCE. 


PART    I. 

OF  THE  NATURE  AND  PRINCIPLES  OF  EVIDENCE. 


CHAPTER  I. 

PEELnnNAKY  OBSERVATIONS. 

§  1.  Definitions.  The  word  EvroENCE,  in  legal  acceptation, 
includes  all  the  means  by  which  any  alleged  matter  of  fact,  the 
truth  of  which  is  submitted  to  investigation,  is  established  or  dis- 
proved.i  This  term,  and  the  word  proofs  are  often  used  indiffer- 
ently, as  synonymous  with  each  other ;  but  the  latter  is  applied 
by  the  most  accurate  logicians,  to  the  effect  of  evidence,  and  not 
to  the  medium  by  which  truth  is  established.^  None  but  mathe- 
matical truth  is  susceptible  of  that  high  degree  of  evidence,  called 
demonstration^  which  excludes  all  possibility  of  error,  and  which, 
therefore,  may  reasonably  be  required  in  support  of  every  mathe- 
matical deduction.  Matters  of  fact  are  proved  by  inoral  evidence 
alone  ;  by  which  is  meant,  not  only  that  kind  of  evidence  which 
is  employed  on  subjects  connected  with  moral  conduct,  but  all  the 
evidence  which  is  not  obtained  either  from  intuition,  or  from 
demonstration.  In  the  ordinary  affairs  of  life,  we  do  not  require 
demonstrative  evidence,  because  it  is  not  consistent  with  the 
nature  of  the  subject,  and  to  insist  upon  it  would  be  unreason- 

1  See  Wills  on  Circumstantial  Evid.  *  Whately's  Logic,  b.  4,  ch.  3,  §  1. 

2;  1  Stark.  Evid.  10;  1  Phil.  Evid.  1. 


4  LAW   OF  EVIDENCE  [PAET  I. 

able  and  absurd.  The  most  that  can  be  affirmed  of  such  things 
is,  that  there  is  no  reasonable  doubt  concerning  them.^  The  true 
question^  therefore,  in  trials  of  fact,  is  not  whether  it  is  possible 
that  the  testimony  may  be  false,  but  whether  there  is  sufficient 
'probability  of  its  truth ;  that  is,  whether  the  facts  are  shown  by 
competent  and  satisfactory  evidence.  Things  established  by 
competent  and  satisfactory  evidence  are  said  to  be  proved. 

§  2.  Competent,  satisfactory,  and  cumulative.  By  competent  evi- 
dence is  meant  that  which  the  very  nature  of  the  tiling  to  be 
proved  requires,  as  the  fit  and  appropriate  proof  in  the  particular 
case,  such  as  the  production  of  a  writing,  where  its  contents  are 
the  subject  of  inquiry.  By  satisfactory  evidence^  which  is  some- 
times called  sufficient  evidence,  is  intended  that  amount  of  proof, 
which  ordinarily  satisfies  an  unprejudiced  mind,  beyond  reason- 
able doubt.  The  circumstances  which  will  amount  to  this  degree 
of  proof  can  never  be  previously  defined  ;  the  only  legal  test  of 
which  they  are  susceptible  is  their  sufficiency  to  satisfy  the  mind 
and  conscience  of  a  common  man ;  and  so  to  convince  him,  that 
he  would  venture  to  act  upon  that  conviction,  in  matters  of  the 
highest  concern  and  importance  to  his  own  interest.^  Questions 
respecting  the  competency  and  admissibility  of  evidence  are 
entirely  distinct  from  those  which  respect  its  sufficiency  or  effect ; 
the  former  being  exclusively  within  the  province  of  the  court ;  the 
latter  belonging  exclusively  to  the  jury.^  Cumulative  evidence  is 
evidence  of  the  same  kind,  to  the  same  point.  Thus,  if  a  fact  is 
attempted  to  be  proved  by  the  verbal  admission  of  the  party,  evi- 
dence of  another  verbal  admission  of  the  same  fact  is  cumulative ; 
but  evidence  of  other  circumstances,  tending  to  establish  the  fact, 
is  not.^ 

§  3.  Division  of  the  subject.  This  branch  of  the  law  may  be 
considered  under  three  general  heads,  namely :  First,  The  Nature 

'  See  Gambier's  Guide  to  the  Study  of  there  is  occasion  to  apply  them,  they  are 

Moral  Evidence,  p.  121.    Even  of  matlie-  found  to  lead  to  just  conclusions.    Id. 

matical  trutlis,  tliis  writer  justly  remarks,  196. 

that,  though  capable  of  demonstration,  2  \  Stark.  Evid.  514.    [This  is  the  rule 

they  are  admitted  by  most  men  solely  on  applicable  in  criminal  cases.     See  jwst, 

the  moral  evidence  of  general  notoriety,  vol.  iii.  §  29.     But,  by  universal  consent, 

For  most  men  arc  neither  able  themselves  a  preponderance  of  evidence  is  suflicicnt 

to  understand  mathematical  demonstra-  in  civil  cases.     See  post,  §  13  a.] 
tions,  nor  have  they,  ordinarily,  for  their  '  Columbian  Ins.  Co.  v.  Lawrence,  2 

truth,  the   testimony  of   those   who   do  Pet.  25,  44;  Bank  United  States  v.  Cov- 

understand  them ;  but,  finding  them  gen-  coran.  Id.  121,  133;  Van  Ness  v.  Pacard, 

erally  believed   in   the   world,  they  also  Id.  137,  149  [Carpenters' Co.  r.  Hay  ward, 

believe  them.    Tlieir  belief  is  afterwards  1  Doug.  375.     See  also  ;^os^  §  320]. 
confirmed  by  experience ;  for,  whenever         *  Parker  v.  Hardy,  24  Pick.  246,  248. 


CHAP.  I.]  PEELEVECSTAEY  OBSERVATIONS.  5 

and  Principles  of  Evidence  ;  —  Secondly^  The  Object  of  Evidence, 
and  the  Rules  which  govern  in  the  production  of  testimony  ;  — 
And  Thirdly^  The  Means  of  Proof,  or  the  Instruments,  by  which 
facts  are  established.  This  order  will  be  followed  in  farther 
treating  this  subject.  But,  before  we  proceed,  it  will  be  proper 
first  to  consider  what  things  courts  will,  of  themselves,  take 
notice  of,  without  proof. 


LAW  OF  EVIDENCE.  *  [PAUT  I. 


CHAPTER  II. 

OF  THINGS   JUDICIALLY  TAKEN  NOTICE   OF,   WITHOUT  PEOOF. 

§  4.  Public  functionaries,  seals,  lavrs,  and  acta  of  state.  All  civil- 
ized nations,  being  alike  members  of  the  great  family  of  sovereign- 
ties, may  well  be  supposed  to  recognize  each  other's  existence, 
and  general  public  and  external  relations.  The  usual  and  appro 
priate  symbols  of  nationality  and  sovereignty  are  the  national 
flag  and  seal.  Every  sovereign,  therefore,  recognizes,  and,  of 
course,  the  public  tribunals  and  functionaries  of  every  nation 
take  notice  of  the  existence  and  titles  of  all  the  other  sovereign 
powers  in  the  civilized  world,  their  respective  flags,  and  their 
seals  of  state.  Public  acts,  decrees,  and  judgments,  exemplified 
under  this  seal,  are  received  as  true  and  genuine,  it  being  the 
highest  evidence  of  their  character.^  If,  however,  upon  a  civil 
war  in  any  country,  one  part  of  the  nation  shall  separate  itself 
from  the  other,  and  establish  for  itself  an  independent  govern- 
ment, the  newly  formed  nation  cannot  without  proof  be  recognized 
as  such,  by  the  judicial  tribunals  of  other  nations,  until  it  has 
been  acknowledged  by  the  sovereign  power  under  which  those 
tribunals  are  constituted  ;  ^  the  first  act  of  recognition  belonging 
to  the  executive  function.^  But  though  the  seal  of  the  new  power, 
prior  to  such  acknowledgment,  is  not  permitted  to  prove  itself, 
yet  it  may  be  proved  as  a  fact  by  other  competent  testimony.^ 
And  the  existence  of  such  unacknowledged  government  or  State 


1  Church  j;.  Ilubbart,  2  Cranch,  187,  Ves.   347;   United   States   v.  Palmer,  3 
238;  Griswold  i-.  Pitcairn,  2  Conn.  85,  Wheat.  610,  034. 

90;  United  States  c.  Johns,  4  Dail.  410;  »  [Taylor  v.  Barclay,  2  Sim.  213.] 

The  Santissima  Trinidad,  7  Wheat.  273,  *  United  States  v.  Palmer,  3  Wheat. 

335;  Anon.,  9  Mod.  00 ;   Lincoln  f.  Bat-  010,  034;   The   Estrclla,  4  Wheat.  2!I8. 

telle,   0   Wend.   475    [United    States    v.  What  is  suflkicnt  evidence  to  authenti- 

Wagner,  2  L.  11.  (Ch.  Ap.)   585].     It  is  cate,  in  the  courts  of  this  country,  the 

held  in  New  York  that  such  seal,  to  be  sentence  or  decree  of  the  court  of  a  for- 

recofrnized  in  the  courts,  must  be  a  com-  eign  government,  after  the  destruction 

mon-law  seal,  that  is,  an  impression  upon  of  such  government,  and  while  the  coun- 

wax.     Coit  V.  Milliken,  1  Denio,  376.  try  is  possessed   by  the    conqueror,  re- 

2  City  of  Berne  v.  Bank  of  England,  9  mains  undecided.     Hatflcld  r.  Jameson, 

2  Munf.  53,  70,  71. 


CHAP.  II.]       THINGS   -JUDICIALLY  TAKEN  NOTICE   OF.  7 

may,  in  like  manner,  be  proved ;  the  rule  being,  that  if  a  body 
of  persons  assemble  together  to  protect  themselves,  and  support 
their  own  independence,  make  laws,  and  have  courts  of  justice 
this  is  evidence  of  their  being  a  state.^ 

§  5.  Law  of  Nations,  Seals  of  Notaries,  and  Admiralty  Courts,  and 
all  facts  of  common  knowledge.  In  like  manner,  the  Law  of 
Nations,  and  the  general  customs  and  usages  of  merchants,  as 
well  as  the  public  statutes  and  general  laws  and  customs  of  their 
own  country,  as  well  ecclesiastical  as  civil,  are  recognized,  with- 
out proof,  by  the  courts  of  all  civilized  nations.^  The  seal  of  a 
notary-public  is  also  judicially  taken  notice  of  by  the  coutts,  he 
being  an  officer  recognized  by  the  whole  commercial  world.^ 
Foreign  Admiralty  and  Maritime  Coui'ts,  too,  being  the  courts 
of  the  civilized  world,  and  of  co-ordinate  jurisdiction,  are  judi- 
cially recognized  everywhere  ;  and  their  seals  need  not  be  proved.* 
Neither  is  it  necessary  to  prove  things  wliich  must  have  hap- 
pened according  to  the  ordmary  course  of  nature  ;  ^  nor  to  prove 
the  course  of  time,  or  of  the  heavenly  bodies ;  nor  the  ordinary 
pubhc  fasts  and  festivals ;  nor  the  coincidence  of  days  of  the 
week  with  days  of  the  month  ;  ^  nor  the  meanmg  of  words  in  the 


1  Trissarri  v.  Clement,  2  C.  &  P. 
223,  per  Best,  C.  J.  And  see  1  Kent, 
Comra.  189;  Grotius,  De  Jur.  Bel.  b.  3, 
c.  3,  §  1. 

2  Ereskirie  v.  Murray,  2  Ld.  Eaym. 
1542;  Heineecius  ad  Pand.  1.  22,  tit.  3, 
§  119;  1  Bl.  Comm.  75,  76,  85;  Edie  v. 
East  India  Co.,  2  Burr.  1226, 1228 ;  Chand- 
ler V.  Grieves,  2  H.  Bl.  606,  n. ;  Eex  v. 
Sutton,  4  M.  &  S.  542;  6  Vin.  Abr.  tit. 
Court,  D ;  1  Pol.  Abr.  526,  D.  [An  act 
which  extends  to  and  affects  all  persons 
within  the  limits  defined  is  a  public  act. 
Levy  V.  State,  6  Ind.  281.  See  also  post, 
§§  479,  489,  490.  Courts  will  not  take 
notice  of  private  statutes,  such  as  a  spe- 
cial act  for  a  survey  of  a  particular  tract 
of  land,  Allegheny  v.  Nelson,  25  Penn. 
St.  332;  post,  §  480;  nor  of  the  history 
of  public  statutes,  as  shown  by  legisla- 
tive journals,  Grob  i'.  Cushman,  45  111. 
119  ;  nor  of  municipal  ordinances  and 
by-laws,  Hassard  v.  Municipality,  &c., 
7  La.  An.  4y5;  Mooney  v.  Kennett,  19 
Mo.  551;  Case  t-.  Mobile,  30  Ala.  538; 
Garvin  v.  Wells,  8  Iowa,  286].  Judges 
will  also  take  notice  of  the  usual  practice 
and  course  of  conveyancing.  3  Sugd. 
Vend.  &  Pur. '28;  Willoughby  v.  Wil- 
loughbv,  1  T.  R.  772,  per  Ld.  Hardwicke ; 
Doe  y.  Milder,  2  B.  &  Aid.  793;  Eowe  v. 


Grenfel,  Ry.  &  Mo.  .398,  per  Abbott, 
C.  J.  So,  of  the  general  lien  of  bankers 
on  securities  of  their  customers,  deposited 
with  them.  Brandao  v.  Barnett,  3  M.  G. 
&  Sc.  519. 

3  Anon.,  12  Mod.  345;  Wright  v.  Bar- 
nard,  2  Esp.  700 ;  Yeaton  v.  Pry,  5  Cranch, 
5.35 ;  Brown  v.  Philadelphia  Bank,  6  S.  & 
R.  484  ;  Chanoine  v.  Fowler,  3  Wend.  17.3, 
178;  Bayley  on  Bills,  515  (2d  Am.  ed.  by 
Phillips  &,  Sewall) ;  Hutcheon  i'.  Man- 
nington,  6  Ves.  823 ;  Porter  v.  Judson,  1 
Gray,  175. 

■*  Croudson  v.  Leonard,  4  Cranch,  435  ; 
Rose  I'.  Himely,  Id.  292;  Church  v.  Hub- 
barc,  2  Cranch,  187;  Thompson  v.  S'e  a'- 
art,  3  Conn.  171,  181 ;  Green  v.  Waller,  2 
Ld.  Raym.  891,  893;  Anon.,  9  Mod.  GG; 
Story  on  the  Conflict  of  Laws,  §  643 ; 
Hughes  V.  Cornelius,  as  stated  bv  Lord 
Holt,  in  2  Ld.  Raym.  893.  And  "see  T. 
Raym.  473 ;  s.  c.  2  Show.  232. 

5  Rex  V.  Luffe,  8  East,  202;  Fay  v. 
Prentice,  9  Jur.  876  [Floyd  v.  Ricks,  14 
Ark.  286]. 

6  6  Vin.  Abr.  491.  pi.  6,  7,  8;  Hoyle  v. 
Cornwallis,  1  Stra.  387 ;  Page  v.  Faucet, 
Cro.  El.  227 ;  Harvey  v.  Broad,  2  Salk. 
626  ;  Hanson  v.  Shackelton,  4  Dowl.  48 ; 
Dawkins  v.  Smithwick,  4  Flor.  158 
[Sasscer  v.  Farmers'  Bank,  4  Md.  409  j 


8 


LAW  OF  EVIDEl^CE. 


[PABT  I. 


vernacular  language ;  ^  nor  the  legal  weights  and  measures ;  ^ 
nor  any  matters  of  public  history,  affecting  the  whole  peo- 
ple ;  ^  nor  public  matters,  affecting  the  government  of  the  coun- 
try." 

§  6.  Political  divisions,  events,  and  public  ofiBcers.  Courts  also 
take  notice  of  the  territorial  extent  of  the  jurisdiction  and  sov- 
ereignty, exercised  de  facto  by  their  own  government ;  and  of 
the  local  divisions  of  their  country,  as  into  states,  provinces, 
counties,  cities,  towns,  local  parishes,  or  the  like,  so  far  as  polit- 
ical government  is  concerned  or  affected  ;  and  of  the  relative 
positions  of  such  local  divisions  ;  but  not  of  their  precise  bounda- 
ries,  farther   than   they  may  be   described  in  public  statutes.^ 


Sprowl  V.  Lawrence,  33  Ala.  674 ;  Bury 
V.  Blogg,  12  Q.  B.  877 ;  Holman  v.  Burrow, 
2  Ld.  llaym.  795  ;  nor  of  the  differences 
of  time  in  different  longitudes,  Curtis 
V.  Marsh,  1  C.  B.  n.  s.  153;  but  vicis- 
situdes of  the  season  must  be  proved, 
Dixon  V.  JS'icholls,  39  111.  372]. 

1  Clementi  v.  Golding,  2  Campb.  25 ; 
Commonwealth  v.  Kneeland,  20  Pick. 
239  [nor  of  customary  abbreviations, 
Weaver  v.  McElhanon,  13  Mo.  89;  Mosely 
V.  Maston,  37  Ala.  216;  Stephen  v.  State, 
11  Geo.  225 ;  Ellis  v.  Park,  8  Texas,  205. 
But  in  Texas  it  will  not  be  assumed  that 
"New  Orleans,  La.,"  means  New  Orleans, 
Louisiana,  Russell  v.  Martin,  15  Texas, 
238 ;  though  it  would  doubtless  take  no- 
tice that  New  Orleans  is  not  in  Texas, 
Cooke  V.  Wilson,  1  C.  B.  n.  s.  153.  But 
the  meaning  of  special  phrases,  such  as 
"cost-book  principle"  (Bodmin  Mines 
Co.,  23  Beav.  370),  "Black Republicans," 
and  the  like,  must  be  proved.  Baltimore 
V.  State,  12  Md.  376.] 

2  llockin  V.  Cooke,  4  T.  R.  314.  The 
current  coins  of  the  country,  whether 
established  by  statute  or  existing  imme- 
niorially,  will  be  judicially  recognized. 
[Daily  v.  State,  10  Ind.  536.]  Tlie  courts 
will  also  take  notice  of  the  character  of 
the  existing  circulating  medium,  and  of 
the  popular  language  in  reference  to  it, 
Lampton  v.  Haggard,  3  Monr.  149  ;  Jones 
V.  Overstrect,  4  Monr.  547  [United 
Slates  f.  Burns,  5  McLean,  23;  United 
States  V.  King,  Id.  208 ;  but  not  of  the 
extent  of  its  depreciation,  Modawell  v. 
Holmes,  40  Ala.  3'Jl];  nor  of  the  cur- 
rent value  of  the  notes  of  a  bank  at 
any  particular  time,  Feemster  v.  Ringo, 
6  Monr.  336. 

3  Bank  of  Augusta  v.  Earle,  13  Pet. 
510,  590;  1  Stark.  Ev.  211  (6th  Am.  ed.) 
[See  also   Payne  i*.  Tread  well,   16  Cal. 


220;  Douglass  v.  Branch  Bank,  19  Ala. 
659.  So,  that  slavery  is  abolished,  and 
when  and  how,  Ferdinand  v.  State,  39 
Ala.  706;  that  the  Metliodist  P'piscopal 
church  was  divided  into  two  parts,  and 
when,  Humphrey  v.  Burnside,  4  Bush 
(Ky.),  215;  and  that  the  Rebellion  was 
suppressed,  and  when.  Clay  v.  Patton,  50 
Ala.] 

*  Taylor  v.  Barclay,  2  Sim.  221. 
Where  a  libel  was  charged,  in  stating 
that  the  plaintiff's  friends,  in  the  advo- 
cacy of  her  claims,  "  had  realized  the 
fable  of  the  Frozen  Snake,"  it  was  held 
that  the  court  might  judicially  take  no- 
tice that  the  knowledge  of  that  fable  of 
Phaedrus  generally  prevailed  in  society. 
Hoare  v.  Silverlock,  12  Jur.  695;  12  Ad. 
&  El.  N.  s.  624. 

6  Deybel's  case,  4  B.  &  Aid.  242 ;  2 
Inst.  557  [Kirbv  v.  Hickson,  1  L.  M. 
St.  p.  364] ;  Fazakerley  v.  Wiltshire.  1 
Stra.  469  ;  Humplirevs  v.  Budd,  9  Dowl. 
1000;  Ross  V.  Reddick,  1  Scam.  73; 
Goodwin  v.  Appleton,  9  Shepl.  453 ;  Van- 
derwerker  v.  The  People,  6  Wend.  530 
[State  i;.  Powers,  25  Conn.  48;  Ham  v. 
Ham,  39  Maine,  263  ;  Id.  291  ;  Wright  v. 
Phillips,  2  Greene  (Iowa),  191  ;  Robert- 
son i\  Teal,  9  Texas,  344 ;  Wheeler  v. 
Moody,  Id.  372 ;  Ross  v.  Austill,  2  Cal. 
183;  Kidder  v.  Blaisdell,  45  Maine,  461 ; 
Winnipiseogee  Lake  Co.  v.  Young,  40 
N.  H.  420.  So  they  will  take  notice  .,f 
the  great  geographical  features  of  the 
country,  its  lakes,  rivers,  and  mountains. 
Mossman  v.  Forest,  27  Ind.  2.33.  And 
that  a  particular  place  is  or  is  not  in  a 
particular  county.  Martin  v.  Martin,  51 
Me.  366 ;  and  see  also  Cooke  i-.  Wilson, 
1  C.  B.  N.  8.  153.  Contra,  Brune  v. 
Thompson,  2  Ad.  &  El.  n.  8.  789.  Nor 
will  the  courts  judicially  take  notice, 
that  a  de  facto  sovereignty  is  or  is  not 


CHAP,  n.]       THINGS   JUDICIALLY  TAKEN  NOTICE  OF.  9 

They  will  also  judicially  recognize  the  political  constitution  or 
frame  of  their  own  government ;  its  essential  political  agents  or 
public  officers,  sharing  in  its  regular  administration  ;  and  its 
essential  and  regular  political  operations,  powers,  and  action. 
Thus,  notice  is  taken,  by  all  tribunals,  of  the  accession  of  the 
Chief  Executive  of  the  nation  or  state,  under  whose  authority 
they  act ;  his  powers  and  privileges  ;  ^  the  genuineness  of  his  sig- 
nature,2  the  heads  of  departments,  and  principal  officers  of  state, 
and  the  public  seals  ;  ^  the  election  or  resignation  of  a  senator  of 
the  United  States;  the  appointment  of  a  cabinet  or  foreign 
minister;*  marshals  and  sheriffs,^  and  the  genuineness  of  their 
signatures,^  but  not  their  deputies ;  courts  of  general  jurisdiction, 
their  judges,'^  their  seals,  their  rules  and  maxims  in  the  adminis- 
tration of  justice,  and  course  of  proceeding  ;  ^  also,  of  public 
proclamations  of  war  and  peace,^  and  of  days  of  special  public 


rightfully  exercised.  State  v.  Dunwell, 
3  R.  I.  127.] 

1  Elderton's  case,  2  Ld.  Raym.  980, 
per  Holt,  C.  J.  [Hizer  v.  State,  12  Ind. 
330;  Lindsey  v.  Attorney-general,  33 
Miss.  608;  State  v.  Williams,  5  Wis. 
3081. 

'^  Jones  V.  Gale's  Ex'r,  4  Martin,  635. 
And  see  Rex  v.  Miller,  2  W.  Bl.  797 ;  1 
Leach  Or.  Cas.  74;  Rex  v.  Gully,  1 
Leach,  Cr.  Cas.  98. 

3  Rex  V.  Jones,  2  Campb.  121 ;  Ben- 
nett V.  The  State  of  Tennessee,  Mart.  & 
Yerg.  133;  Ld.  Melville's  case,  29  How. 
St.  Tr.  707.  And  see,  as  to  seals,  infra, 
§  50.3,  and  cases  there  cited.  [The  courts 
of  the  United  States  will  take  notice 
of  the  persons  who  from  time  to  time 
preside  over  the  patent-office,  whether 
permanently  or  transiently.  York,  &c. 
Railroad  Co.  v.  Winans,  17  How.  (U.  S.) 
30] 

*  Walden  v.  Canfield,  2  Rob.  La.  466. 

6  Holman  v.  Burrow,  2  Ld.  Raym. 
794;  [Ingrahamr.  State,  27  Ala.  17;  Ma- 
jor r.  State,  2  Sneed  (Tenn.),  11.  And 
county  officers  generally.  Wetherbee  v. 
Dunn,  32  Cal.  106 ;  Templeton  v.  Mor- 
gan, 16  La.  An.  438 ;  Graham  v.  Ander- 
son, 42  III.  514.  The  Court  of  Common 
Pleas  will  take  judicial  notice  that  the 
Queen's  prison  is  in  England.  Wick- 
ens  r.  Goatley,  8  Eng.  Law  &  Eq.  420, 
422.] 

t*  Alcock  V.  Whatmore,  8  Dowl.  P.  C. 
615. 

7  Watson  V.  Hay,  3  Kerr,  5-59.  [The 
Supreme  Court  (of  Ohio)  will  take  judi- 
cial notice  of  the  time  fixed  for  the  com- 


mencement of  its  sessions,  but  not  of  the 
duration  of  any  particular  session.  Gil- 
liland  v.  Sellers,  2  Ohio,  n.  s.  223.  See 
also  Lindsay  v.  Williams,  17  Ala.  229.] 

8  Tregany  v.  Fletcher,  1  Ld.  Raym. 
154  ;  Lane's  case,  2  Co.  16;  3  Com.  Dig. 
336,  Courts,  Q. ;  Newell  v.  Newton,  10 
Pick.  470;  Elliott  v.  Evans,  3  B.  &  P. 
183,  184,  per  Ld.  Alvanley,  C.  J. ;  Ma- 
berley  v.  Robins,  5  Taunt.  625  ;  Tooker  i'. 
Duke  of  Beaufort,  Sayer,  296  [Tucker 
V.  State,  11  Md.  322].  Whether  superior 
courts  are  bound  to  take  notice  who  are 
justices  of  the  inferior  tribunals,  is  not 
clearly  settled.  In  Skipp  v.  Hook,  2 
Stra.  1080,  it  was  objected  that  they  were 
not;  but  whether  the  case  was  decided 
on  that  or  on  the  other  exception  taken 
does  not  appear.  Andrews,  74,  reports 
the  same  case,  ex  relatione  alteriiis,  and 
equally  doubtful.  And  see  Van  Sandau 
V.  Turner,  6  Ad.  &  El.  773,  786,  per  Ld. 
Denman.  The  weight  of  American  au- 
thorities seems  rather  on  the  affirmative 
side  of  the  question.  Hawks  v.  Kenne- 
bec, 7  Mass.  461;  Ripley  v.  Warren,  2 
Pick.  592  ;  Despau  v.  Swindler,  3  Mar- 
tin, N.  s.  705;  FoUain  v.  Lofevre,  3 
Rob.  (La.)  13.  In  Louisiana,  tlie  courts 
take  notice  of  the  signatures  of  execu- 
tive and  judicial  officers  to  all  official 
acts.  Jones  v.  Gale's  Ex'r,  4  Martin, 
635  ;  Wood  v.  Fitz,  10  Martin,  196. 

9  Dolder  v.  Ld.  Huntingfield,  11  Ves. 
292  ;  Rex  v.  De  Bercnger,  3  M.  &  S.  67  ; 
Taylor  v.  Barclay,  2  Sim.  213.  [So  also 
of  treaties.  United  States  v.  Reynes,  9 
How.  (U.  S.)  127  ;  military  orders  affect- 
ing proceedings  in  courts,  Taylor  v.  Gra- 


10 


LAW   OF   EVIDENCE. 


[part  I. 


fasts  and  thanksgivings;  stated  days  of  general  political  elections; 
the  sittings  of  the  legislature,  and  its  established  and  usual  course 
of  proceeding ;  the  privileges  of  its  members,  but  not  the  transao 
tions  on  its  journals.^  The  courts  of  the  United  States,  moreover, 
take  judicial  notice  of  the  ports  and  waters  of  the  United  States 
in  which  the  tide  ebbs  and  flows  ;  of  the  boundaries  of  the  several 
states  and  judicial  districts ;  "^  and,  in  an  especial  manner,  of  all 
the  laws  and  jurisprudence  of  the  several  States  in  which  they 
exercise  an  original  or  an  appellate  jurisdiction.  The  judges  of 
the  Supreme  Court  of  the  United  States  are,  on  this  account,  bound 
to  take  judicial  notice  of  the  laws  and  jurisprudence  of  all  the 
States  and  Territories.^  A  court  of  errors  will  also  take  notice 
of  the  nature  and  extent  of  the  jurisdiction  of  the  inferior  court 
whose  judgment  it  revises.^  In  fine,  courts  will  generally  take 
notice  of  whatever  ought  to  be  generally  known  within  the  limits 
of  their  jurisdiction.^  In  all  these,  and  the  like  cases,  where 
the  memory  of  the  judge  is  at  fault,  he  resorts  to  such  documents 
of  reference  as  may  be  at  hand,  and  he  may  deem  worthy  of 
confidence.^ 


ham,  18  La.  An.  256  ;  and  acting  military 
oflBcers,  Chapman  v.  Herrold,  58  Pa.  !St, 
106.] 

I  Lake  v.  King,  1  Saimd.  131 ;  Birt  v. 
Rotliwell,  1  Ld.  Raym.  210,  343  ;  Hex  v. 
Wilde,  1  Lev.  290;  1  Dong.  97,  n.  41; 
Rex  V.  Arundel,  Hob.  109-111;  Rex  v. 
Knollys,  1  Ld.  Raym,  10,  15;  Stockdale 
V.  Hansard,  7  C.  &  P.  731  ;  9  Ad.  &  El.  1 ; 
11  Ad.  &  EI.  253  ;  Siieriff  v.  iMiddlesex's 
case,  Id.  273;  Cassidy  v.  Stewart,  2  M.  & 
G.  437. 

'^  Story  on  Eq.  Plead.  §  24,  cites 
United  States  ?'.  La  Vcngoaneo,  3  Dall. 
297;  The  Apollon,  9  Wheat.  374;  The 
Thomas  Jefferson,  10  Wheat.  428  ;  Pey- 
roux  V.  Howard,  7  Pet.  342.  They  will 
also  recognize  the  nsiial  course  of  the 
great  inland  conimerce,  by  which  tlie 
products  of  agricultm-e  in  the  valley  of 
the  Missis.sippi  tind  their  way  to  market. 
Gibson  v.  Stevens,  8  How.  "(S.  C.)  384; 
[Lathrop  v.  Stewart,  5  McLean,  107.] 

•>  Ibid.  ;  Owings  v.  Hull,  9  Put.  007, 
624,  025;  Jasper  v.  I'orter,  2  McLean, 
679;  [Miller  v.  McQuerry,  5  McLean, 
469.] 

*  Chitty  V.  Dendy,  3  Ad.  &  El.  .310. 
[See  March  v.  Commonwealtli,  12  E. 
Mon.  25] 

•^  [As  of  any  process  of  art  or  science 
whose  results  have  become  matterof  com- 
mon knowledge,  as  that  photograpliy  is  a 


means  ofproducing  correct  likenesses,  and 
therefore  photographs  are  admissible  as 
a  means  of  identification  or  description. 
Udderzook's  case,  7()  Pa.  St.  340 ;  Coz- 
zens  V.  Higgins,  1  Abb.  Ct.  of  App.  Dec. 
451.  Or  tliat  certain  processes  produce 
certain  results.  Brown  v.  Piper,  U.  S. 
Sup.  Ct.,  Nov.  1875.  In  Texas  it  is 
held  that  courts  will  not  take  judicial 
notice  of  the  quantity  of  lands  witiiin 
given  courses  and  distances,  Tison  r. 
Smith,  8  Texas,  147  ;  in  Indiana,  that  they 
will  take  notice  of  the  distance  between 
two  places  by  the  ordinary  route  of  travel, 
Hipot  i'.  Cocln-an,  13  Ind.  175;  Goodwin 
V.  Ajipleton,  22  Maine,  433  :  in  New  York, 
of  the  length  of  an  ordinary  steam  \oy- 
age  across  the  Atlantic,  Oppenheim  v. 
Leo  Wolf,  3  Sandf.  Ch.  571  :  and  in 
Alabama,  of  the  nature  of  lotteries,  and 
liow  they  are  managed,  BouUermet  v. 
State,  28  Ala.  83,  —  all  of  which  seem 
hardly  within  the  rules  of  common  knowl- 
edge. There  is  not  much  consistency  in 
the  cases,  and  possibly  this  may  result 
from  the  fact  that  different  judges  nuiy 
assume  that  what  is  or  is  not  known  to 
them  is  or  is  not  generally  knf)wn.] 

•^  Gresley  on  Evid.  395.  [iio  he  may 
resort  to  other  sources  ot  informa- 
tion in  his  discretion.  Wilioughby  v. 
Willoug]d)y,  1  T.  R.  772;  Taylor  c.  Bar- 
clay,  2  Sim.  221 ;  United  States  v.  Tesch- 


CHAP,  n.]       THINGS   JUDICIALLY  TAKEN   NOTICE  OF. 


11 


maker,  22  How.  (U.  S.)  392.  When  there 
is  no  controversy  as  to  the  precise  spot 
where  a  crime  is  committed,  but  a  ques- 
tion arises,  upon  the  construction  of 
charters  and  acts  of  jurisdiction,  whether 
this  spot  is  within  the  jurisdiction,  it  is  a 
question  of  law  for  tlie  court ;  and  it  will 
not  only  take  judicial  notice  of  legisla- 
tive enactments,  ancient  charters,  and 
geographical  position,  but  it  will  refresh 
its  recollection  and  guide  its  judgment 
by  reference  to  the  records  of  the  court, 


general  histories  of  deceased  authors  of 
established  reputation,  and  the  official 
records  of  the  census.  "Wagner's  case, 
61  Maine,  178.  But  not  to  local  histories. 
The  line  of  distinction  between  local 
and  general  histories  is,  however,  far 
from  well  defined.  McKinnon  v.  Bliss, 
21  N.  Y.  206.  As  to  seals,  public  stat- 
utes, documents,  proclamations,  legisla- 
tive acts,  and  the  like,  see  also,  post, 
§§  479,  et  seg.] 


12  LAW   OF  EVIDENCE.  [PABT  I. 


CHAPTER  III. 

OF    THE    GROTJlSrDS    OF    BELIEF. 

§  7.  Personal  experience.  "We  proceed  now  to  a  brief  consid- 
eration of  the  Q-eneral  Nature  and  Principles  of  Evidence,  No 
inquiry  is  liere  proposed  into  the  origin  of  human  knowledge  ;  it 
being  assumed,  on  the  authority  of  approved  writers,  that  all  that 
men  know  is  referable,  in  a  philosophical  view,  to  perception  and 
reflection.  But,  in  fact,  the  knowledge  acquired  by  an  individ- 
ual, through  his  own  perception  and  reflection,  is  but  a  small 
part  of  what  he  possesses  ;  much  of  what  we  are  content  to  regard 
and  act  upon  as  knowledge  having  been  acquired  through  the 
perception  of  others.^  It  is  not  easy  to  conceive  that  the 
Supreme  Being,  whose  wisdom  is  so  conspicuous  in  all  his  works, 
constituted  man  to  believe  only  upon  liis  own  personal  expe- 
rience ;  since  in  that  case  the  world  could  neither  be  governed 
nor  improved  ;  and  society  must  remain  in  the  state  in  which  it 
was  left  by  the  first  generation  of  men.  On  the  contrary,  during 
the  period  of  childhood,  we  believe  implicitly  almost  all  that  is 
told  us  and  thus  are  furnished  with  information  which  we  coidd 
not  otherwise  obtain,  but  which  is  necessary,  at  the  time,  for  oiu* 
present  protection,  or  as  the  means  of  future  improvement. 
This  disposition  to  believe  may  be  termed  instinctive.  At  an 
early  period,  however,  we  begin  to  find  that,  of  the  things  told 
to  us,  some  are  not  true,  and  thus  our  implicit  reliance  on  the 
testimony  of  others  is  weakened :  first,  in  regard  to  particular 
things  in  which  we  have  been  deceived  ;  then  in  regard  to  per- 
sons whose  falsehood  we  have  detected ;  and,  as  these  instances 
multiply  upon  us,  we  gradually  become  more  and  more  distrustful 
of  such  statements,  and  learn  by  experience  tlie  necessity  of 
testing  them  by  certain  rules.  Thus,  as  our  abilit}^  to  obtain 
knowledge  by  other  means  increases,  our  instinctive  reliance  on 
testimony  diminishes,  by  yielding  to  a  more  rational  belief.^ 

^  Abercrombie  on  the  Intellectual  2  Gambler's  Guide,  p.  87 ;  McKinnon's 
Powers,  part  2,  §  1,  pp.  45,  46.  Philosophy  of  Eviilencc,  p.   40.      This 


CB.JiF.  m.] 


GROUNDS   OF   BELIEF. 


13 


§  8,  Experience  of  others.     It  is  true,  that,   ill  receiving  the 
knowledge  of  facts  fi-om  the  testimony  of  others,  we  are  much 


subject  is  treated  more  largely  by  Dr. 
Rei<l  in  liis  profound  "Inquiry  into  tlie 
Human  Mind,"  eh.  6,  §  24,  pp.  428-4:34, 
in  these  words :  "Tiie  wise  and  benefi- 
cent Autlior  of  Nature,  who  intended  that 
wo  should  be  social  creatures,  and  that 
we  shouhl  receive  the  greatest  and  most 
important  part  of  our  knowledge  by  the 
information  of  others,  hath,  for  these 
purposes,  implanted  in  our  natures  two 
principles  that  tally  with  each  other. 
The  first  of  these  principles  is  a  propen- 
sity to  speak  trutli  and  to  use  the  signs 
of  language,  so  as  to  convey  our  real 
sentiments.  This  principle  has  a  power- 
ful operation,  even  in  the  greatest  liars  ; 
for  where  they  lie  once  they  speak  truth 
a  hundred  times.  Truth  is  always 
uppermost,  and  is  tlie  natural  issue  of 
the  mind.  It  requires  no  art  or  training, 
no  inducement  or  temptation,  but  only, 
that  we  yield  to  a  natural  impulse. 
Lying,  on  the  contrary,  is  doing  violence 
to  our  nature ;  and  is  never  practised, 
even  by  the  worst  men,  without  some 
temptation.  Speaking  truth  is  like  using 
our  natural  food,  which  we  would  do 
from  appetite,  although  it  answered  no 
end;  but  lying  is  like  taking  physic, 
which  is  nauseous  to  the  taste,  and  which 
no  man  takes  but  for  some  end  which 
he  cannot  otherwise  attain.  If  it  should 
be  objected,  that  men  may  be  influenced 
by  moral  or  political  considerations  to 
speak  truth,  and,  therefore,  that  their 
doing  so  is  no  proof  of  such  an  original 
principle  as  we  have  mentioned ;  I  an- 
swer, first,  that  moral  or  political  con- 
siderations can  have  no  influence  until 
we  arrive  at  j'ears  of  understanding  and 
reflection ;  and  it  is  certain,  from  expe- 
rience, that  children  keep  to  truth  inva- 
riably, before  they  are  capable  of  being 
influenced  b}'  such  considerations.  Sec- 
ondly, when  we  are  influenced  by  moral 
or  political  considerations,  we  must  be 
conscious  of  that  influence,  and  capable 
of  perceiving  it  upon  reflection.  Now, 
when  I  reflect  upon  my  actions  most 
attentively,  I  am  not  conscious  that,  in 
speaking  truth,  I  am  influenced  on  ordi- 
nary occasions  by  any  motive,  moral  or 
political.  I  find  that  truth  is  always  at 
the  door  of  my  lips,  and  goes  forth  spon- 
taneously, if  not  held  back.  It  requires 
neither  good  nor  bad  intention  to  bring 
it  forth,  but  only  that  I  be  artless  and 
undesigning.  There  may,  indeed,  be 
temptations  to  falsehood,  which  would 
be  too  strong  for  the  natural  principle  of 


veracity,  unaided  by  principles  of  honor 
or  virtue;  but  where  there  is  no  such 
temptation,  we  speak  truth  by  instinct ; 
and  this  instinct  is  the  principle  I  have 
been  explaining.  By  this  instinct,  a 
real  connection  is  formed  between  our 
words  and  our  tlioughts,  and  thereby  the 
former  become  fit  to  be  signs  of  the  lat- 
ter, which  they  could  not  otherwise  be. 
And  although  this  connection  is  broken 
in  every  instance  of  lying  and  equivoca- 
tion, yet  these  instances  being  compara- 
tively few  the  authority  of  human  testi- 
mony is  only  weakened  by  them,  but 
not  destroyed.  Another  original  princi- 
ple, implanted  in  us  by  the  Supreme 
Being,  is  a  disposition  to  confide  in  the 
veracity  of  others,  and  to  believe  what 
they  tell  us.  This  is  the  counterpart  to 
the  former ;  and  as  that  may  be  called 
the  principle  of  veracity,  we  shall,  for 
want  of  a  more  proper  name,  call  this 
the  principle  of  credulity.  It  is  unlim- 
ited in  children,  until  they  meet  with 
instances  of  deceit  and  falsehood  ;  and  it 
retains  a  very  considerable  degree  of 
strength  through  life.  If  nature  had 
left  the  mind  of  the  speaker  in  aquilibrio, 
without  any  inclination  to  the  side  of 
truth  more  than  to  that  of  falsehood, 
children  would  lie  as  often  as  they  speak 
truth,  until  reason  was  so  far  ripened, 
as  to  suggest  the  imprudence  of  lying, 
or  conscience,  as  to  suggest  its  immo- 
rality. And  if  nature  had  left  the  mind 
of  the  hearer  in  aquilibrio,  without  any 
inclination  to  the  side  of  belief  more 
than  to  that  of  disbelief,  we  should  take 
no  man's  word,  until  we  had  positive 
evidence  that  he  spoke  truth.  His  testi- 
mony would,  in  this  case,  have  no  more 
authority  than  his  dreams,  which  may 
be  true  or  false;  but  no  man  is  disposed 
to  believe  them,  on  this  account,  that 
they  were  dreamed.  It  is  evident,  tliat, 
in  the  matter  of  testimony,  the  balance 
of  human  judgment  is  by  nature  inclined 
to  the  side  of  belief ;  and  turns  to  that 
side  of  itself,  when  there  is  nothing  put 
into  the  opposite  scale.  If  it  was  not 
so,  no  proposition  that  is  uttered  in  dis- 
course would  be  believed,  imtil  it  was 
examined  and  tried  by  reason  ;  and  most 
men  would  be  unable  to  find  reasons  for 
believing  the  thousandth  part  of  what  is 
told  them.  Such  distrust  and  incredulity 
would  deprive  us  of  the  greatest  bene- 
fits of  society,  and  place  us  in  a  worse 
condition  than  that  of  savages.  Chil- 
dren, on  this  supposition,  would  be  abso- 


14 


LAW   OF  EVIDEKCE. 


[PAKT  I. 


influenced  by  their  accordance  with  facts  previously  known  or 
believed ;  and  this  constitutes  what  is  termed  their  probability. 
Statements,  thus  probable,  are  received  upon  evidence  much  less 
cogent  than  we  require  for  the  belief  of  those  which  do  not  accord 
with  our  previous  knowledge.  But  while  these  statements  are 
more  readily  received,  and  justly  relied  upon,  we  should  beware 
of  unduly  distrusting  all  others.  While  unbounded  credulity  is 
the  attribute  of  weak  minds,  which  seldom  think  or  reason  at  all,  — 
*'  quomagis  nesciunt  eo  magis  admirantur,"  —  unlimited  scepticism 
belongs  only  to  those  who  make  their  own  knowledge  and  obser- 
vation the  exclusive  standard  of  probability.  Thus  the  king  of 
Siam  rejected  the  testimony  of  the  Dutch  ambassador,  that,  in  liis 
country,  water  was  sometimes  congealed  into  a  solid  mass  ;  for  it 
was  utterly  contrary  to  his  own  experience.  Sceptical  philoso- 
phers, inconsistently  enough  with  their  own  principles,  yet  true 
to  the  nature  of  man,  continue  to  receive  a  large  portion  of  their 
knowledge  upon  testimony  derived,  not  from  their  own  experi- 


lutely  incredulous,  and  therefore  abso- 
lutely incapable  of  instruction ;  those 
who  had  little  knowledge  of  human  life, 
and  of  the  manners  and  ciiaracters  of 
men,  would  be  in  tlie  next  degree  in- 
credulous ;  and  the  most  credulous  men 
■would  be  tliose  of  greatest  experience, 
and  of  the  deepest  penetration  ;  because, 
in  many  cases,  they  would  be  able  to 
find  good  reasons  for  believing  testimony, 
which  the  weak  and  the  ignorant  could 
not  discover.  In  a  word,  if  credulity 
were  the  effect  of  reasoning  and  experi- 
ence, it  nmst  grow  up  and  gather 
strength  in  the  same  proportion  as  rea- 
son and  experience  do.  But  if  it  is  the 
gift  of  nature,  it  will  be  strongest  in 
childhood,  and  limited  and  restrained  by 
experience;  and  the  most  superficial 
view  of  human  life  shows,  that  the  last 
is  really  the  case,  and  not  tlie  first.  It 
is  the  intention  of  nature,  that  we  should 
be  carried  in  arms  before  we  are  able  to 
walk  upon  our  legs;  and  it  is  likewise 
the  intention  of  nature,  that  our  belief 
sliould  be  guided  by  the  authority  and 
reason  of  others,  before  it  can  be  guided 
by  our  own  reason.  The  weakness  of 
the  infant,  and  the  natural  affection  of 
the  mother,  plainly  indicate  the  former; 
and  the  natural  credulity  of  youth  and 
authority  of  age  as  plainly  indicate  the 
latter.  Tiie  infant,  by  proper  nursing 
and  care,  acquires  strength  to  walk  with- 
out support.     Reason  hath  likewise  her 


infancy,  when  she  must  be  carried  in 
arms ;  then  she  leans  entirely  upon  au- 
thority, by  natural  instinct,  as  if  she  was 
conscious  of  her  own  weakness ;  and 
without  this  support  she  becomes  vertig- 
inous- AVheu  brought  to  maturity  by 
proper  culture,  she  begins  to  feel  her 
own  strength,  and  leans  less  upon  the 
reason  of  others;  she  learns  to  suspect 
testimony  in  some  cases,  and  to  disbe- 
lieve it  in  others ;  and  sets  bounds  to 
that  authority  to  which  she  was  at  first 
entirely  subject.  But  still,  to  the  end  of 
life,  she  finds  a  necessity  of  borrowing 
light  from  testimony,  where  she  has 
none  within  herself,  and  of  leaning  in 
some  degree  upon  the  reason  of  others, 
where  she  is  conscious  of  her  own  imbe- 
cility. And  as,  in  many  instances.  Rea- 
son, even  in  her  maturity,  borrows  aid 
from  testimony,  so  in  others  she  mutu- 
ally gives  aid  to  it  and  strengthens  its 
authority.  For,  as  we  find  good  reason 
to  reject  testimony  in  some  cases,  so  in 
others  we  find  good  reason  to  n.-ly  upon 
it  with  perfect  security,  in  our  most  im- 
portant concerns.  The  character,  the 
number,  and  the  disinterestedness  of 
witnesses,  the  impossibility  of  collusion, 
and  the  incredibility  of  their  concurring 
in  their  testimony  without  collusion, 
may  give  an  irresistible  strength  to  tes- 
timony, compared  to  whicli  its  native 
and  intrinsic  authority  is  very  inconsid 
erable." 


CHAP,  in.]  GROXUSTDS   OF  BELIEF.  15 

ence,  but  from  that  of  other  men ;  and  tliis,  even  when  it  is  at 
variance  with  much  of  their  own  personal  observation.  Thus, 
the  testimony  of  the  historian  is  received  with  confidence,  in 
I'egard  to  the  occurrences  of  ancient  times  ;  that  of  the  naturalist 
and  the  traveller,  in  regard  to  the  natural  liistory  and  civil  con- 
dition of  other  countries  ;  and  that  of  the  astronomer,  respecting 
the  heavenly  bodies ;  facts,  which,  upon  the  narrow  basis  of  his 
own  "  firm  and  unalterable  experience,"  upon  which  Mr.  Hume 
so  much  relies,  he  would  be  bound  to  reject,  as  wholly  unworthy 
of  belief. 

§  9.  Same  subject.  The  uniform  habits,  therefore,  as  well  as 
the  necessities  of  mankind,  lead  us  to  consider  the  disposition  to 
believe,  upon  the  evidence  of  extraneous  testimony,  as  a  funda- 
mental principle  of  our  moral  nature,  constituting  the  general 
basis  upon  which  all  evidence  may  be  said  to  rest.^ 

§  10.  Same  subject.  Subordinate  to  this  paramount  and  origi- 
nal principle,  it  may,  in  the  second  place,  be  observed,  that  evi- 
dence rests  upon  our  faith  in  human  testimony,  as  sanctioned  by 
experience ;  that  is,  upon  the  general  experienced  truth  of  the 
statements  of  men  of  integrity,  having  capacity  and  opportunity 
for  observation,  and  without  apparent  influence  from  passion  or 
interest  to  pervert  the  truth.  Tliis  belief  is  strengthened  by  our 
previous  knowledge  of  the  narrator's  reputation  for  veracity ;  by 
the  absence  of  conflicting  testimony ;  and  by  the  presence  of  that 
which  is  corroborating  and  cumulative. 

§  11.  Relation  of  facts  to  each  other.  A  third  basis  of  evidence 
is  the  kno\\Ti  and  experienced  connection  subsisting  between 
collateral  facts  or  circumstances,  satisfactorily  proved,  and  the 
fact  in  controversy.  This  is  merely  the  legal  application,  in 
other  terms,  of  a  process,  familiar  in  natural  philosophy,  showing 
the  truth  of  an  hypothesis  by  its  coincidence  with  existing  phe- 
nomena. The  connections  and  coincidences  to  which  we  refer 
may  be  either  physical  or  moral ;  and  the  knowledge  of  them  is 
derived  from  the  known  laws  of  matter  and  motion,  from  animal 
instincts,  and  from  the  physical,  intellectual,  and  moral  constitution 
and  habits  of  man.  Their  force  depends  on  their  sufficiency  to 
exclude  every  other  hypothesis  but  the  one  under  consideration. 
Thus,  the  possession  of  goods  recently  stolen,  accompanied  with 
personal  proximity  in  point  of  time  and  place,  and  inability  in 
1  Abercrombie  on  the  Intellectual  Powers,  part  2,  §  3,  pp.  70-75. 


16  LAW   OF  EVIDENCE.  [PAET  I. 

the  party  charged,  to  show  how  he  came  by  them,  would  seem 
naturally*  though  not  necessarily,  to  exclude  every  other  hypoth- 
esis but  that  of  his  guilt.  But  the  possession  of  the  same 
goods,  at  a  remoter  time  and  place,  would  warrant  no  such  con- 
clusion, as  it  would  leave  room  for  the  hypothesis  of  their  having 
been  lawfully  purchased  in  the  course  of  trade.  Similar  to  tliis 
in  principle  is  the  rule  of  noseitur  a  sociis,  according  to  which  the 
meaning  of  certain  words,  in  a  written  instrument,  is  ascertained 
by  the  context. 

§  12.  Coincidences.  Some  writers  have  mentioned  yet  another 
ground  of  the  credibility  of  evidence,  namely,  the  exercise  of  our 
reason  upon  the  effect  of  coincidences  in  testimony,  which,  if 
collusion  be  excluded,  cannot  be  accounted  for  upon  any  other 
hypothesis  than  that  it  is  true.^  It  has  been  justly  remarked, 
that  progress  in  knowledge  is  not  confined,  in  its  results,  to  the 
mere  facts  which  we  acquire,  but  it  has  also  an  extensive  influ- 
ence in  enlarging  the  mind  for  the  further  reception  of  truth, 
and  setting  it  free  from  many  of  those  prejudices  which  influence 
men  whose  minds  are  limited  by  a  narrow  field  of  observation.^ 
It  is  also  true,  that,  in  the  actual  occurrences  of  human  life, 
nothing  is  inconsistent.  Every  event  which  actually  transpires 
has  its  appropriate  relation  and  place  in  the  vast  complication  of 
ch'cumstances,  of  which  the  affairs  of  men  consist;  it  owes  its 
origin  to  those  which  have  preceded  it ;  it  is  intimately  connected 
with  all  others  which  occur  at  the  same  time  and  place,  and  often 
with  those  of  remote  regions  ;  and,  in  its  turn,  it  gives  birth  to  a 
thousand  others  which  succeed.^  In  all  this,  there  is  perfect 
harmony ;  so  that  it  is  hardly  possible  to  invent  a  story  which,  if 
closely  compared  with  all  the  actual  contemporaneous  occurrences, 
may  not  be  shown  to  be  false.  From  these  causes,  minds,  deeply 
imbued  with  science,  or  enlarged  by  long  and  matured  experi- 
ence, and  close  observation  of  the  conduct  and  affairs  of  men, 
may,  with  a  rapidity  and  certainty  approaching  to  intuition,  per- 
ceive the  elements  of  truth  or  falsehood  in  the  face  itself  of  the 
narrative,  without  any  regard  to  the  narrator.  Thus,  Arcliimedes 
might  have  believed  an  account  of  the  invention  and  wonderful 
powers  of  the  steam-engine,  which  his  unlearned  countrj'^men 

1  1  Stark.  Evid.  471,  note.  8  1  Stark.  Evid.  496. 

2  Abcrcrombie    on     the     Intellectual 
Powers,  part  2,  §  3,  p.  71. 


CHAP,  in.]  GKOtTNDS   OF  BELIEF.  17 

would  hare  rejected  as  incredible  ;  and  an  experienced  judge 
may  instantly  discover  the  falsehood  of  a  witness,  whose  story  an 
inexperienced  jury  might  be  inclined  to  believe.  But  though  the 
mind,  in  these  cases,  seems  to  have  acquired  a  new  power,  it  is 
properly  to  be  referred  only  to  experience  and  observation. 

§  13.  Direct  and  circumstantial  evidence.  In  trials  of  fact,  it 
vill  o-enerally  be  found  that  the  factum  probandiim  is  either 
diiectly  attested  by  those  who  speak  fi-om  their  own  actual  and 
personal  knowledge  of  its  existence,  or  it  is  to  be  inferred  from 
other  facts,  satisfactorily  proved.  In  the  former  case,  the  truth 
rests  upon  the  second  ground  before  mentioned,  namely,  our  faith 
in  human  veracity,  sanctioned  by  experience.  In  the  latter  case, 
it  rests  on  the  same  ground,  with  the  addition  of  the  experienced 
connection  between  the  collateral  facts  thus  proved  and  the  fact 
which  is  in  controversy ;  constituting  the  third  basis  of  e\'idence 
before  stated.  The  facts  proved  are,  in  both  cases,  directly 
attested.  In  the  former  case,  the  proof  applies  immediately  to 
the  factum  probandum,  without  any  intervening  process,  and  it  is 
therefore  called  direct  or  positive  testimony.  In  the  latter  case, 
as  the  proof  applies  immediately  to  collateral  facts,  supposed  to 
have  a  connection,  near  or  remote,  with  the  fact  in  controversy, 
it  is  termed  circumstantial ;  and  sometimes,  but  not  with  entire 
accuracy,  p>'>'csum])tive.  Thus,  if  a  witness  testifies  that  he  saw 
A  inflict  a  mortal  wound  on  B,  of  which  he  instantly  died ;  this 
is  a  case  of  direct  evidence  ;  and,  giving  to  the  witness  the  credit 
to  which  men  are  generally  entitled,  the  crime  is  satisfactorily 
proved.  If  a  witness  testifies  that  a  deceased  person  was  shot 
with  a  pistol,  and  the  wadding  is  found  to  be  part  of  a  letter 
addressed  to  the  prisoner,  the  residue  of  which  is  discovered  in 
his  pocket :  here  the  facts  themselves  are  directly  attested ;  but 
the  evidence  they  afford  is  termed  circumstantial  ;  and  from  these 
facts,  if  unexplained  by  the  prisoner,  the  jury  may,  or  may  not, 
deduce,  or  infer,  or  presume  his  guilt,  according  as  they  are  satis- 
fied, or  not,  of  the  natural  connection  between  similar  facts,  and 
the  guilt  of  the  person  thus  connected  with  them.  In  both 
cases,  the  veracity  of  the  witness  is  presumed,  in  the  absence  of 
proof  to  the  contrary  ;  but  in  the  latter  case  there  is  an  additional 
presumption  or  inference,  founded  on  the  known  usual  connection 
between  the  facts  proved,  and  the  guilt  of  the  party  implicated. 
This  operation  of  the  mind,  which  is  more  complex  and  difficult 


18  LAW  OF  EVIDENCE.  [PAET  I. 

in  the  latter  case,  has  caused  the  evidence  afforded  by  circum- 
stances to  be  termed  presumptive  evidence  ;  though,  in  truth,  the 
operation  is  similar  in  both  cases. 

§  13  a.  Degrees  of  circumstantial  evidence.  Circumstantial  evi- 
dence is  of  two  kinds,  namely,  certain^  or  that  from  which  the 
conclusion  in  question  necessarily  follows  ;  and  uncertain,  or  that 
from  which  the  conclusion  does  not  necessarily  follow,  but  is 
probable  only,  and  is  obtained  by  process  of  reasoning.  Thus,  if 
the  body  of  a  person  of  mature  age  is  found  dead,  with  a  recent 
mortal  wound,  and  the  mark  of  a  bloody  left  hand  is  upon  the 
left  arm,  it  may  well  be  concluded  that  the  person  once  lived,  and 
that  another  person  was  present  at  or  since  the  time  when  the 
wound  was  inflicted.  So  far  the  conclusion  is  certain ;  and  the 
jury  would  be  bound  by  their  oaths  to  find  accordingi3^  But 
whether  the  death  was  caused  by  suicide  or  by  murder,  and 
whether  the  mark  of  the  bloody  hand  was  that  of  the  assassin,  or 
of  a  friend  who  attempted,  though  too  late,  to  afford  relief,  or  to 
prevent  the  crime,  is  a  conclusion  which  does  not  necessarily 
follow  from  the  facts  proved,  but  is  obtained,  from  these  and  other 
circumstances,  by  probable  deduction.  The  conclusion,  in  the 
latter  case,  may  be  more  or  less  satisfactory  or  stringent,  accord- 
ing to  the  circumstances.  In  civil  cases,  where  the  mischief  of 
an  erroneous  conclusion  is  not  deemed  remediless,  it  is  not  nec- 
essary that  the  minds  of  the  jurors  be  freed  from  all  doubt ;  it  is 
their  duty  to  decide  in  favor  of  the  party  on  Avhose  side  the 
weight  of  evidence  preponderates,  and  according  to  the  reasonable 
probability  of  truth.  But  in  criminal  cases,  because  of  the  more 
serious  and  irreparable  nature  of  the  consequences  of  a  wrong 
decision,  the  jurors  are  required  to  be  satisfied,  beyond  any 
reasonal)le  doubt,  of  the  guilt  of  the  accused,  or  it  is  their  duty 
to  acquit  him  ;  tlie  'charge  not  being  proved  by  that  higher 
degree  of  evidence  which  the  law  demands.  In  civil  cases,  it  is 
sufficient  if  the  evidence,  on  the  whole,  agrees  with  and  sup- 
ports the  hypothesis  which  it  is  adduced  to  prove  ;  but  in 
criminal  cases  it  must  exclude  every  other  hypothesis  but  that 
of  the  guilt  of  the  party.^  In  both  cases,  a  verdict  may  well 
be  founded   on   circumstances  alone ;   and  those  often  lead  to 

1  [Every  other  ronsonable  hypothesis.  Schusler  v.  State,  29  Incl.  394;  post,  §  34, 
Com.  V.  Goodwin,  14  Gray  (Mass. J,  55;     and  vol.  iii.  §  •J'J.l 


CHAP,  in.] 


GROUNDS   OF   BELIEF. 


19 


a  conclusion  far  more  satisfactory  than  direct  evidence  can  pro- 
duce.^ 


1  See  Bodine's  case,  in  the  New  York 
Legal  Observer,  vol.  iv.  pp.  89, 95,  where 
the  natnre  and  value  of  this  kind  of  evi- 
dence are  fully  discussed.  See  infra, 
§§  44-48.  And  see  Commonwealth  r. 
Webster,  6  Gush.  296,  310-319  ;  [People 
V.  Videto,  1  Parker,  C.  R.  603.  United 
States  V.  Gibert,  2  Sura.  (U.  S.  C.  Ct.) 
19.  For  some  valuable  observations  on 
the  caution  with  wliich  circumstantial 
evidence  is  in  general  to  be  received,  see 
Taylor,  Ev.  §§  42-52.  He  also  criticises 
the  so-called  judicial  axiom  that  "wit- 
nesses may  lie,  but  circumstances  can- 
not "  as  a  false  and  dangerous  proposition. 
But  he  fails  to  observe  the  distinction 
stated  by  our  author  between  those  cir- 
cumstances from  which  conclusions  nec- 
essarily follow,  and  those  from  which 
the  conclusion  is  only  probable.  It  is  still 
true  that,  while  all  witnesses  may  lie, 
some  circumstances  cannot,  and  that  un- 
equivocal circumstances  are  amongst  the 
most  satisfactory  species  of  evidence. 
The  following  observations,  by  Appleton, 
C.  J.,  in  the  charge  in  Read's  case  (Sup. 
Ct.  Maine,  pamphlet,  1S74 ;  1  Cen.  L.  J. 
219),  seem  to  be  well  worthy  a  place 
here :  — 

"Evidence  is  ordinarily  divided  into 
two  kinds,  direct  and  circumstantial : 
du-ect  when  the  witness  testifies  to  the 
principal  fact  in  issue,  —  as  when  a  mur- 
der is  committed,  —  and  the  witness  tes- 
tifies that  he  saw  the  blow  inflicted,  which 
resulted  in  death,  and  the  person  by 
whom  It  was  so  inflicted.  In  such  a  case 
the  truth  of  the  witness  testifying  is 
the  main  subject  of  inquirj'. 

'■  In  circumstantial  testimony  there  is 
the  fact  proving  and  the  fact  proved  in- 
ferentially  from  the  fact  given  in  testi- 
mony. The  circumstance  must  be  proved 
to  the  satisfaction  of  the  jury,  and  it  is 
for  them  to  say  when  that  is  done,  and 
then  to  draw  the  inference  from  the  fact 
or  circumstance  thus  proved.  To  illus- 
trate :  A  snow-storm ;  the  new-falUn 
snow  covers  the  earth ;  a  witness  testi- 
fies to  human  footprints  in  the  snow  : 
you  infer  some  one  has  passed.  He 
givf  s  you  the  direction  of  the  toe  and  the 
heel :  you  infer  the  direction  in  which  the 
person  was  moving.  As  his  steps  are 
watched,  it  is  proved  that  there  is  a  dot 
or  hole  in  the  snow  :  you  infer  he  had  a 
stick  or  cane  in  his  hamls.  It  is  summer ; 
the  rain  has  fallen  ;  the  ground  is  muddy ; 
a  witness  testifies  to  seeing  the  impres- 
eion  of  tlie  heel  and  the  toes  in  the  mud. 
If  you  believe  the  witness,  do  you  doubt 


that  the  person  whose  feet  made  the  im- 
pression was  barefooted'?  Yet  this  is 
circumstantial  evidence. 

"  A  man  testifies  to  seeing  a  violent 
blow  given  by  a  club,  and  the  falling 
dead  of  the  person  struck.  You  infer  the 
man  was  killed  by  the  blow  from  the  fact 
that  a  witness  so  testified,  for  you  did  not 
see  him,  —  that  is,  you  infer  one  fact 
from  another, —  the  killing  from  the 
sworn  testimony,  an  inference  properly 
drawn,  if  the  testimony  be  true  ;  but  it 
is  still  an  inference.  It  is  of  the  same 
kind  as  any  other  inference  of  one  fact 
from  another,  —  the  fact  of  testimony, 
the  assumption  of  the  truth  of  testimony, 
and  the  inference  from  the  fact  testified 
to  its  truth.  In  short,  strictly  speaking, 
all  testimony  is  circumstantial  or  infer- 
ential, except  what  one  sees  or  hears. 

"  Yon  see  a  man  discharge  a  loaded 
gun ;  you  see  the  flash ;  you  see  a  man 
fall  dead ;  you  find  the  bullet  in  the 
body ;  you  saw  not  the  ball  in  its  pas- 
sage through  the  air  from  the  pistol  to 
the  body ;  you  did  not  see  it  leave  the 
pistol  or  enter  the  body  ;  but,  from  the 
facts  seen,  you  infer  that  it  did.  What 
is  this  but  circumstantial  evidence  '^ 

"  The  probative  force  of  circumstan- 
tial evidence  depends  upon  the  closeness 
of  connection  between  the  fact  inferred 
and  the  fact  from  which  the  inference  is 
drawn.  The  more  numerous  the  circum- 
stances, the  facts  tending  to  establish  a 
given  fact,  the  greater  this  probative 
force.  One  circumstance  may  be  of 
slight  moment;  another,  tending  to  the 
same  result,  increases,  by  its  consistency 
with  tiie  first,  the  probability  of  the 
inference  to  be  drawn  from  their  exist- 
ence and  coexistence  :  another  is  added, 
and  another,  all  pointing  in  the  same 
direction ;  giving  added  and  increased 
strength  to  the  inference,  as  each  strand 
gives  strength  to  the  cable  of  which  it 
forms  a  component  part.  Men  talk  of  a 
chain  of  facts.  The  comparison  is  inapt. 
The  chain  is  weakened  by  the  increasing 
number  of  its  hnks,  until  it  breaks  by  its 
own  weight.  Not  so  with  circumstantial 
evidence.  The  rope  or  cable  gains  in- 
creased strength  by  each  added  strand. 
The  failure  of  proof  as  to  one  circum- 
stance is  but  one  strand  from  the  cable. 
The  cable  may  still  be  firm  and  strong, 
holding  the  ship  securely  at  anchor, 
though  tossed  upon  the  sea  by  the  fierce 
and  stormy  winds. 

"The  strength  of  the  conclusion  is 
not  to  be  ascertained  by  the  addition  of 


20 


LAW  OP  EVIDENCE. 


[PAET  I. 


the  several  probabilities  created  by  the 
several  circumstances  :  their  existence 
proved,  and  their  concurrence  increases 
in  a  much  liigher  degree,  the  truth  of  the 
conclusion,  till  that  may  become  irresist- 
ible from  the  concurrence  of  numerous 
distinct,  coexistent,  and  corroborating 
facts,  all  tending  in  the  same  direction  to 
one  and  the  same  inevitable  result. 

"  Nor  is  it  necessary  that  each  and 
every  circumstance  should  be  proved  be- 
yond a  reasonable  doubt.  Some  facts 
may  be  proved  with  more,  some  with 
less,  assurance  of  certainty.  Such  is  the 
invariable  result.  Some  facts  are  proved 
more  satisfactorily  than  others.  It  is 
enough  that  you  give  to  each  fact  its  just 
and  true  weight.  'J'hen,  after  weighing 
and  examining  each  and  all  the  facts, 
exculpative  aud  inculpative,  if  you  are 
satisfied  beyond  a  reasonable  doubt  of 
the  guilt  of  the  prisoner,  it  will  be  your 
bounden  duty  to  saj'  so,  thougii  some  of 
the  alleged  facts  may  be  proved  with  a 
less  degree  of  certainty  than  others. 

"  It  is  in  vain  that  we  attempt  to  de- 
tect or  punish  crime  unless  we  resort  to 
circumstantial  evidence.  Crime  shuns 
the  light  of  day.  It  seeks  darkness.  It 
courts  secrecy.  It  endeavors  to  escape 
detection.  The  assassin  moves  stealthily 
upon  his  unsuspicious  or  sleeping  vic- 
tims. He  calls  no  witness  to  see  him 
strike  the  fatal  blow.  He  attempts 
to  obliterate  all  traces  of  crime.  He 
geeks  to  cover  up  his  tracks.  Does  the 
thief  take  a  witness  to  see  him  steal,  the 
incendiary  to  see  him  apply  the  torch  1 
You  must  resort  to  circumstantial  evi- 
dence, or  crime  must  remain  unpunished. 
If  you  wait  for  an  eye-witness  to  every 
crime,  if  you  expect  a  felon  to  call  one 
to  witness  his  criminality,  you  at  once 
grant  impunity  to  crime. 

"  There  may  have  been  cases  in  which 
the  innocent  have  been  convicted.  If 
this  be  so,  it  is  a  reason  for  caution,  for 
giving  to  eacli  circumstance  its  just  and 
appropriate  weiglit;  not  for  disregarding 
such  proof,  or  neglecting  to  give  it  proper 
consideration.  But  if  men  have  been 
convicted  erroneously  on  circumstantial 
evidence,  so  have  they  on  direct  testi- 
mony ;  but  is  that  a  reason  for  refusing 
to  act  on  such  testimony  1  Is  it  any 
more  or  better  reason  for  refusing  to  act 
on  circumstantial  evidence  ?  Assuredly 
not. 

"  The  cases  are  few  and  far  between 
in  wliich  erroneous  verdicts  were  found 
upon  this  species  of  evidence,  and  the/ 


occurred  under  entirely  different  condi- 
tions from  tiiose  of  our  own  time.  For- 
merly the  prisoner  was  not  allowed  to 
call  witnesses  and  have  them  sworn.  He 
was  not  allowed  to  employ  counsel.  He 
could  not  be  a  witness  in  his  own  case. 
Now  the  government  summons  his  wit- 
nesses, pays  his  counsel,  and  permits 
him  to  be  a  witness  to  explain,  if  lie  can, 
every  adverse  fact.  But  the  cases  of  er- 
roneous verdicts  are  of  rare  occurrence. 
The  wonder  is  that  they  were  so  few. 
Did  you,  gentlemen,  ever  know  or  liear 
of  one  in  this  State  ?  The  stories  told  of 
such  instances  may  or  may  not  be  true, 
but  of  their  truth  you  have  no  proof. 
They  are  resorted  to  for  the  purpose  of 
imposing  upon  timid  jurymen  the  belief 
that  there  should  be  no  safe  conviction 
upon  circumstantial  evidence,  that  there 
is  infinite  danger  to  innocence,  if  there 
is  such  conviction.  They  have  nothing 
to  do  with  the  case  under  consideration. 
This  you  are  to  decide  upon  the  evidence 
before  you,  upon  nothing  else. 

"  Circumstantial  evidence  is  legal  evi- 
dence. When  that  satisfies  you  beyond 
reasonable  doubt,  you  are  equally  bound 
to  act  upon  it  as  if  it  were  the  most  direct. 
The  possibility  of  error  exists  alike, 
whether  the  evidence  be  direct  or  cir- 
cumstantial. But  because  you  possibly 
may  err,  do  you  refuse  to  act '?  Because 
your  wlieat  may  possibly  be  blighted,  do 
you  refuse  to  sow "?  Until  it  pleases 
Providence  to  give  us  means  of  knowl- 
edge beyond  our  present  faculties,  we 
must  act  upon  this  kind  of  evidence, 
or  grant  almost  universal  impunity  to 
crime." 

The  following  observations  also  carry 
with  them  the  weight  of  reason  as  well 
as  authority :  — 

"  Perhaps  strong  circumstantial  evi- 
dence, in  cases  of  crimes  committed  for 
the  most  part  in  secret,  is  the  most  satis- 
factory of  any  from  which  to  draw  the 
conclusion  of  guilt ;  for  men  may  be 
seduced  to  perjury  by  many  base  mo- 
tives, to  which  the  secret  nature  of  tlio 
olfence  may  sometimes  alTord  a  tempta- 
tion ;  but  it  can  scarcely  happen  that 
many  circumstances,  especially  if  they 
be  sucli  over  which  the  accuser  could 
have  no  control,  forming  all  together 
the  links  of  a  transaction,  should  all  un- 
fortunately concur  to  fix  the  presump- 
tion of  guilt  on  an  individual ;  and  yet 
such  a  conclusion  be  erroneous."  1  East 
P.  C.  c.  5,  §  9.J 


CHAP   IV.]  OF  PRESUAIPTIVE  EVIDEKCE.  21 


CHAPTER  IV. 

OF  PEESTJifPTIVE  EVIDENCE. 

§  14.  Several  kinds  of  presiunptions.  The  general  head  of 
Presumptive  Evidence  is  usually  divided  into  two,  branches  ; 
namely,  presumptions  of  law  2in^  presumptions  of  fact.  Prescrip- 
tions OF  Law  consist  of  those  rules  which,  in  certain  cases, 
either  forbid  or  dispense  with  any  ulterior  inquiry.  They  are 
founded,  either  upon  the  first  principles  of  justice  ;  or  the  laws 
of  nature  ;  or  the  experienced  course  of  human  conduct  and 
affairs,  and  the  connection  usually  found  to  exist  between  certain 
things.  The  general  doctrines  of  presumptive  evidence  are  not 
therefore  peculiar  to  municipal  law,  but  are  shared  by  it  in  com- 
mon with  other  departments  of  science.  Thus,  the  presumption 
of  a  malicious  intent  to  kill,  from  the  deliberate  use  of  a  deadly 
weapon,  and  the  presumption  of  aquatic  habits  in  an  animal 
found  with  webbed  feet,  belong  to  the  same  philosophy ;  differing 
only  in  the  instance,  and  not  in  the  principle,  of  its  application. 
The  one  fact  being  proved  or  ascertained,  the  other,  its  uniform 
concomitant,  is  universally  and  safely  presumed.  It  is  this  uni- 
formly experienced  connection  which  leads  to  its  recognition  by 
the  law  without  other  proof ;  the  presumption,  however,  having 
more  or  less  force,  in  proportion  to  the  universality  of  the  experi- 
ence. And  this  has  led  to  the  distribution  of  presumptions  of 
law  into  two  classes  ;  namely,  conclusive  and  disputable. 

§  15.  Conclusive  presumptions.  Conclusive^  or,  as  they  are 
elsewhere  termed,  imperative,  or  absolute  presumptions  of  law, 
are  rules  determining  the  quantity  of  evidence  requisite  for  the 
support  of  any  particular  averment,  which  is  not  permitted  to  be 
overcome  by  any  proof  that  the  fact  is  otherwise.  They  consist 
chiefly  of  those  cases  in  which  the  long-experienced  connection, 
before  alluded  to,  has  been  found  so  general  and  uniform  as  to 
render  it  expedient  for  the  common  good,  that  this  connection 
should  be  taken  to  be  inseparable  and  universal.  They  have 
been  adopted  by  common  consent,  from  motives  of  public  policy. 


22  LAW   OF  EVIDENCE.  [PAET  I. 

for  tlie  sake  of  greater  certainty,  and  tlie  promotion  of  peace 
and  quiet  in  the  community;  and  therefore  it  is,  that  all  cor- 
roborating evidence  is  dispensed  with,  and  all  opposing  evidence 
is  forbidden.! 

§  16.  By  statute.  Sometimes  this  common  consent  is  expressly 
declared,  through  the  medium  of  the  legislature,  in  statutes. 
Thus,  by  the  statutes  of  limitation,  where  a  debt  has  been 
created  by  simple  contract,  and  has  not  been  distinctly  recog- 
nized, within  six  years,  as  a  subsisting  obligation,  no  action  can  be 
maintained  to  recover  it ;  that  is,  it  is  conclusively  presumed  to 
have  been  paid.^  A  trespass,  after  the  lapse  of  the  same  period, 
is,  in  like  manner,  conclusively  presumed  to  have  been  satisfied. 
So  the  possession  of  land,  for  the  length  of  time  mentioned  in  tlie 
statutes  of  limitation,  under  a  claim  of  absolute  title  and  owner- 
ship, constitutes,  against  all  persons  but  the  sovereign,  a  conclusive 
presumption  of  a  valid  grant.^ 

§  17.  By  the  common  law.  In  other  cases,  the  common  con- 
sent, by  which  this  class  of  legal  presumptions  is  established,  is 
declared  through  the  medium  of  the  judicial  tribunals,  it  being 
the  common  laio  of  the  land ;  both  being  alike  respected,  as 
authoritative  declarations  of  an  imperative  rule  of  law,  against 
the  operation  of  which  no  averment  or  evidence  is  received. 
Thus,  the  uninterrupted  enjoyment  of  an  incorporeal  heredita- 
ment, for  a  period  beyond  the  memory  of  man,  is  held  to  furnish 

1  The  presumption  of  tlic  Roman  Law  limitations  are  based  upon  the  policy  of 

is  defined  to  be,  —  "  Conjectura,  ducta  ab  putting  an  end  to  litigation,  rather  than 

eo,  quod  ut  plurimum  fit.     Ea  conjectura  upon    any    presumption    of     payment, 

vel  a  /er/e  inchicitur,  vel  a  juclice.     Quae  ab  Taylor  Ev.  1,  §  07.] 

ipsa  lege  inducitur,  vel  ita  comparata,  ut  ^  This  period  has  been  limited  differ- 

probationem  contrarii  haud  admittat ;  vel  ently,  at  different  times  ;  but,  for  the  last 

ut  eadem  possit  elidi.     Priorem  doctores  fifty  years,  it  lias  been  shortened  at  suc- 

prasum}>lio)iem  juris  et  de  .juke,  posterio-  ceeding  revisions  of  the  law,  both  in  Eng- 

j-em /j/-fEsiOH;)//(»7)t'w  Juris,  adpellant.    Quae  land  and  the   United  States.     By  Stat  3 

a  Jndice  indicitur  conjectura,  pncsum/i/io  &  4  Wni.  IV".  c.  27,  all  real  actions  are 

HOMiNis  vocari  solet ;  et  semper  admittit  barred  after  twenty  years  from  the  time 

probationem  contrarii,  quamvis,  si  alicu-  when  the  right  of  action  accrued.     And 

jus  niomenti  sit,  probandi  onere  relevet."  this   period   is  adopted  in   most  of   the 

llein.  ad  Pand.,  pars  4,  §    124.     Of  the  United  States,  though   in  some  of   tlie 

former,  answering  to  our  conclusive  pre-  States  it  is  reduced  to  seven  years,  while 

sumption,  Mascardus  observes, —  "Super  in  others  it  is  prolonged  to  fifty.     See  3 

hac  prresumptione  lex  firmum  sancit  jus.  Cruise's  Dig.  tit.  31,  c.  2,  the  sj'nopsis 

et  cam   pro  veritnle,  hahct."     De   Proba-  of  Limitations  at  the  end  of  the  chapter 

tiouibus,  vol  i.  quaist.  x.  48.     An  excep-  (Grcenlcaf's    cd.).      See    also    4    Kent, 

tion  to  the  general  conclusiveness  of  this  Comm.  188,  note  (a).     The  same  period 

class  of  presumptions  is  allowed  in  tlie  in  regard  to  the  title  to  real  property,  or, 

case  of  admissions  in  jndicio,  which  will  as  some  construe  it,  only  to  the  profits  of 

be    hereafter     mentioned.       See    infia^  tlie  land,  is  ailojjted  in  the  Hindu  Law. 

§§  10!>,  18(5,  205,  20tj.  See   Macnaghten's   Elements  of   Hindu 

^  [But  most,  if  not  all,  the  statutes  of  Law,  vol.  i.  p.  201. 


CHAP.  IV.I 


OF  PKESTJJMPTIVE  EVIDEXCE. 


23 


a  conclusive  presumption  of  a  prior  grant  of  that  which  has  been 
so  enjoyed.  Tliis  is  termed  a  title  by  prescription.^  If  this 
enjoyment  has  been  not  onl}'  uninterrupted,  but  exclusive  and 
adverse  in  its  character,  for  the  period  of  twenty  years,  this  also 
lias  been  held,  at  common  law,  as  a  conclusive  presumption  of 
title.2  There  is  no  difference,  in  principle,  whether  the  subject 
be  a  corporeal  or  an  incorporeal  hereditament ;  a  grant  of  land 
may  as  well  be  presumed  as  a  grant  of  a  fishery,  or  a  common,  or 
a  way.^  But,  in  regard  to  the  effect  of  possession  alone  for  a 
period  of  time,  unaccompanied  by  other  evidence,  as  affording  a 
presumption  of  title,  a  difference  is  introduced,  by  reason  of  the 
statute  of  limitations,  between  corporeal  subjects,  such  as  lands 
and  tenements,  and  things  incorporeal ;  and  it  has  been  held,  that 
a  grant  of  lands,  conferring  an  entire  title,  cannot  be  presumed 
from  mere  possession  alone,  for  any  length  of  time  short  of  that 
prescribed  by  the  statute  of  limitations.  The  reason  is,  that,  with 
respect  to  corporeal  hereditaments,  the  statute  has  made  all  the 
provisions  which  the  law  deems  necessary  for  quieting  possessions  ; 
and  has  thereby  taken  these  cases  out  of  the  operation  of  the 


1  3  Cruise's  Dig.  430, 431  (Greenleafs 
ed.).  Prsescriptio  est  titilus,  ex  usu  et 
tempore  substantiam  capiens,  ab  authori- 
tate  logis."  Co.  Litt.  113  a.  What  length 
of  time  constitutes  tliis  period  of  legal 
memory  has  been  much  discussed  among 
lawyers.  In  this  country,  the  courts  are 
inclined  to  adopt  the  periods  mentioned 
in  the  statutes  of  limitation,  in  all  cases 
analogous  in  principle.  Coolidge  v. 
Learned,  8  Pick.  504  ;  Melvin  v.  Whiting, 
10  Pick.  295;  Kicard  v.  Williams,  7 
Wheat.  110.  In  England,  it  is  settled  by 
Stat.  2  &  3  Wm.  IV.  c.  71,  by  which  the 
period  of  legal  memory  has  been  limited 
as  follows  :  In  cases  of  rights  of  common 
or  other  benefits  arising  out  of  lands,  ex- 
ce])t  tithes,  rents,  and  services,  prima 
facie  to  thirty  years  ;  and  conclusively  to 
sixty  years,  unless  proved  to  have  been 
held  by  consent,  expressed  by  deed  or 
other  writing  ;  in  cases  of  aquatic  rights, 
■ways,  and  other  easements, /J/i'wa/tic/e  to 
twenty  years  ;  and  conclusively  to  forty 
years,  unless  proved  in  like  manner,  by 
written  evidence,  to  have  been  enjoyed 
by  consent  of  the  owner ;  and,  in  cases 
of  lights,  conclusively  to  twenty  years, 
unless  proved  in  like  manner,  to  have 
been  enjoyed  by  consent.  In  the  Roman 
Law,  prescriptions  were  of  two  kinds, — 
extinctive  and  acquisitive.    The  former  re- 


ferred to  rights  of  action,  which,  for  the 
most  part,  were  barred  by  tlie  lapse  of 
thirty  years.  The  latter  had  regard  to  the 
mode  of  acquiring  property  by  long  and 
uninterrupted  possession  ;  and"  this,  in  the 
case  of  immovable  or  real  property,  was 
limited,  inter  prcesentes,  to  ten  years,  and, 
inter  absentes,  to  twenty  years.  Tlie  stu- 
dent will  find  this  doctrine  fully  discu.«sed 
in  ]\Iackeldey's  Compendium  of  Modern 
Civil  Law,  vol.  i.  pp.  200-205,  290,  et  seq. 
(Amcr.  ed.),  with  the  learned  notes  of 
I)r.  Kaufman.  See  also  Novel.  119,  c.  7, 
8.  [See  also  post,  vol.  ii.  §§  537-546,  tit. 
Pkescriptiox.] 

^  Tyler  v.  Wilkinson,  4  Mason,  397, 
402;  Ingraham  v.  Hutchinson,  2  Conn. 
584;  Bealey  v.  Shaw,  6  East,  208,215; 
Wright  V.  Howard,  1  Sim.  &  Stu.  190, 
203;  Strickler  v.  Todd,  10  Serg.  &  Uawle, 
63,  69;  Balston  v.  Bensted,  1  Campb. 
463,  405;  Daniel  v.  North,  11  East,  371  ; 
Sherwood  v.  Burr,  4  Day,  244  ;  Tinkhara 
V.  Arnold,  3  Greenl.  120;  Hill  v.  Crosby, 
2  Pick.  466.  See  Best  on  Presumptions, 
p.  103,  n.  (m)  ;  Bolivar  Manuf.  Co.  v. 
Neponset  Manuf.  Co.,  16  Pick.  241.  See 
s.ho  post,  vol.  ii.  §§  537-546,  tit.  Presckip- 
Tioy. 

3  Ricard  r.  Williams,  7  Wheat.  109; 
Prop'rs  of  Brattle-Street  Church  v.  Bill- 
iard, 2  Met.  363. 


•24 


LAW   OF  EVIDENCE. 


[PAUT  I. 


common  law.  The  possession  of  lands,  however,  for  a  shorter 
period,  when  coupled  with  other  circumstances  indicative  of 
ownership,  may  justify  a  jury  in  finding  a  grant ;  but  such  cases 
do  not  fall  within  this  class  of  presumptions.^ 

§  18.  Natural  consequences  intended.  Thus,  also,  a  sane  man 
is  conclusively  presumed  to  contemplate  the  natural  and  probable 
consequences  of  his  own  acts  ;  and,  therefore,  the  intent  to  murder 
is  conclusively  inferred  from  the  deliberate  use  of  a  deadly 
weapon.2  So,  the  deliberate  publication  of  calumny,  which  the 
publisher  knows  to  be  false,  or  has  no  reason  to  believe  to  be 
true,  raises  a  conclusive  presumption  of  malice.^     So  the  neglect 


1  Summer  v.  Child,  2  Conn.  607,  628- 
632,  per  Gould,  J.;  Clark  v.  Faunce,  4 
Pick.  245. 

2  1  Russ.  on  Crimes,  658-6G0 ;  Rex  v. 
Dixon,  3  M.  &  S.  15;  1  Hale,  P.  C.  440, 
441 ;  Britton,  50,  §  6.  But  if  death  does 
not  ensue  till  a  year  and  a  day  (that  is,  a 
full  year)  after  the  stroke,  it  is  conclu- 
sively presumed  that  the  stroke  was  not 
the  sole  cause  of  the  death,  and  it  is  not 
murder.  4  Bl.  Comra.  197  ;  Glassford  on 
Evid.  592.  The  doctrine  of  presumptive 
evidence  was  familiar  to  the  Mosaic 
Code,  even  to  the  letter  of  the  principle 
stated  in  the  text.  Thus,  it  is  laid  down,  in 
regard  to  the  man-slayer,  that "  if  he  smite 
liim  with  an  instrument  of  iron,  so  that  he 
die  ;  "or,  "if  he  smite  him  with  throwing 
a,  stone  wherewith  he  may  die,  and  he  die;" 
or  "if  he  smite  him  with  a  hand-weapon 
of  steel  wherewith  lie  may  die,  and  he  die, 
he  is  a  murderer."  See  Numb.  xxxv.  16, 
17.  Here,  every  instrument  of  iron  is 
conclusively  taken  to  be  a  deadly  weapon ; 
and  the  use  of  any  such  weapon  raises  a 
conclusive  presumption  of  malice.  The 
same  presumption  arose  from  hiing  in  atn- 
hush,  and  thence  destroying  another.  Id. 
V.  20.  But,  in  other  cases,  tlie  existence 
of  malice  was  to  be  proved,  as  one  of  the 
facts  in  the  case  ;  and,  in  the  absence  of 
malice,  the  offence  was  reduced  to  the  de- 
gree of  manslaughter,  as  at  the  common 
law.  Id.  v.  22,  2;i  This  very  reasonal)le 
distinction  seems  to  have  been  unknown 
to  the  Gentoo  Code,  which  demands  life 
for  life  in  all  cases,  except  where  the  cul- 
pr.t  is  a  Brahmin.  "  If  a  man  deprives 
another  of  life,  the  magistrate  shall  de- 
prive that  person  of  life."  Ilalhed's 
Gentoo  Laws,  book  16,  §  1,  p.  2;W. 
Formerly,  if  the  mother  of  an  illegitimate 
child,  recently  born  and  found  dead,  con- 
cealed the  fact  of  its  birth  and  death,  it 
was  conclusively  presumed  that  she  mur- 
dered it.    Stat.  21,  Jac.  I.  c.  37  ;  probably 


copied  from  a  similar  edict  of  Hen.  II.  of 
France,  cited  by  Domat.  But  this  un- 
reasonable and  barbarous  rule  is  now  re- 
scinded, both  in  England  imd  America. 

The  subject  of  implied  malice,  from 
the  unexplained  fact  of  killing  with  a 
lethal  weapon  was  fully  discussed  in  Com- 
monwealth V.  York,  y  Met.  103,  upon  a 
difference  of  opinion  among  the  learned 
judges,  and  the  rule  there  laid  down,  in 
favor  of  the  inference,  was  reaffirmed  in 
Commonwealth  v.  Webster,  5  Cush.  305. 
[The  doctrine  of  York's  case,  that,  if 
it  does  not  appear  whether  the  killing 
was,  as  it  may  have  been,  accidental,  in 
self-defence,  in  the  heat  of  blood,  or  with 
deliberate  malice,  the  law  will  presume 
the  worst,  is  so  contrary  to  the  rule  that 
the  accused  shall  have  the  benefit  of  a 
doubt,  and  so  repugnant  to  humanity 
that,  although  it  is  supported  by  vener 
able  authority,  there  is  a  growing  disin- 
clination to  follow  it  at  the  present  day. 
It  is  difficult  to  see  how  such  law  is 
either  reasonable  or  humane.  See  Ben- 
nett &  Heard's  Leading  Criminal  Cases, 
vbl.  i.  p.  358 ;  post,  §  34 ;  State  i'.  Mc- 
Donnell, 32  Vt.  491 ;  State  v.  Patterson, 
45  Vt.  308.  Wharton  Horn.  §  069.  The 
intent  to  murder,  conclusively  presum- 
able from  the  deliberate  use  of  a  dead- 
ly weapon,  as  stated  in  the  text,  can 
hardly  be  the  law  now.  Probably  all 
that  now  would  be  conclusively  presumed 
from  such  an  act  would  be  the  intent  to 
kill.  To  warrant  the  inference  of  murder, 
it  must  appear  that  the  act  is  deliberate 
and  unlawful.  State  r.  Knight,  43  Maine, 
11;  Stokes  v.  People,  53  N.  Y.  664; 
Wharton  on  Homicide,  §§  660,  (i7I.  A 
prisoner  is  presumed  to  know  the  law, 
although  he  is  a  foreigner,  and  the  offence 
with  which  he  is  charged  is  no  offence  in 
his  own  country,  liex  v.  Esop,  7  C.  &  P. 
456;  Barronet's  case,  1  E.  &  B.  1.] 

3  Bodwell   V.   Osgood,   3  Pick.    379; 


CHAP.  IV.] 


OF  PRESUMPTIVE  EVIDENCE. 


25 


of  a  party  to  appear  and  answer  to  process,  legally  commenced  in 
a  court  of  competent  jurisdiction,  he  having  been  duly  served 
therewith  and  summoned,  is  taken  conclusively  against  him  as  a 
confession  of  the  matter  charged.^ 

§  19.  Records  presumed  correct.  Conclusive  presumptions  are 
also  made  in  favor  of  judicial  proceedings.  Thus  the  records 
of  a  court  of  justice  are  presumed  to  have  been  correctly  made  ;  ^ 
a  party  to  the  record  is  presumed  to  have  been  interested  in  the 
6uit ;  3  and,  after  verdict,  it  will  be  presumed  that  those  facts, 
without  proof  of  which  the  verdict  could  not  have  been  found, 
were  proved,  though  they  are  not  expressly  and  distinctly 
alleged  in  the  record ;  provided  it  contains  terms  sufficiently 
general  to  comprehend  them  in  fair  and  reasonable  intendment.* 
The  presumption  will  also  be  made,  after  twenty  years,  in  favor 
of  every  judicial  tribunal  acting  within  its  jurisdiction,  that  all 


Haire  v.  Wilson,  9  B.  &  C.  643 ;  Rex  v. 
Shipley,  4  Doug.  73,  177,  per  Ash- 
hurst,  J.     [See  also  post,  vol.  ii.  §  418.] 

1  2  Erskine,  Inst.  780.  Cases  of  this 
sort  are  generally  regulated  bj'  statutes, 
or  by  the  rules  of  practice  established  by 
the  courts ;  but  the  principle  evidently 
belongs  to  a  general  jurisprudence.  So 
is  the  Roman  law.  "  Contuniacia,  eorum, 
qui,  jus  dicenti  non  obtemperant,  litis 
damno  coercetur."  Dig.  lib.  42,  tit.  1, 
1.  53.  "  Si  citatus  aliquis  non  compareatj 
habetur  pro  consentiente."  Mascard,  de 
Prob.  vol.  iii.  p.  253,  concl.  1159,  n.  26. 
See  further  on  this  subject,  infra,  §§  204- 
211.  The  right  of  the  party  to  have 
notice  of  the  proceedings  against  him, 
before  his  non-appearance,  is  taken  as 
a  confession  of  the  matter  alleged,  has 
been  distinctly  recognized  in  the  courts 
both  of  England  and  America,  as  a  rule 
founded  in  the  first  principles  of  nat- 
ural justice,  and  of  universal  obligation. 
Fisher  v.  Lane,  3  Wils.  302,  303,  per  Lee, 
C.  J. ;  The  Mary,  9  Cranch,  144,  per  Mar- 
shall, C.  J. ;  Bradstreet  v.  The  Neptune 
Ins.  Co.,  3  Sumn.  607,  per  Story,  J. 

-  Reed  v.  Easton,  1  East,  365.  "Res 
judicata  pro  veritate  accipitur."  Dig. 
lib.  50,  tit.  17,  1.  207.  [The  proceedings 
of  legislative  bodies  are  presumed  to  have 
been  regular,  and  according  to  law  and 
usage.  Gosset  v.  Howard,  10  Q.  B.  411, 
It  was  the  ancient  maxim  that  the  law 
knows  no  fraction  of  a  day,  and  that 
legislative  and  judicial  acts  were  to  be 
presumed  to  have  been  in  force  on  every 
part  of  the  day  on  whicli  they  were 
fassed,  the  earliest  moment  as  well  as 


the  latest.  But  that  fiction  no  longer 
prevails  when  it  becomes  necessary  for 
the  purposes  of  justice  to  ascertain  the 
exact  hour  or  minute.  3  Chitty,  Pr.  Ill ; 
Ex  parte  D'Obree,  8  Ves.  83,  note  by 
Mr.  Sumner;  In  re  Richardson,  2  Story 
(C.  Ct.),  571;  Ferris  v.  Ward,  4  Gilra. 
(Hi.)  499  ;  Lang  v.  Phillips,  27  Ala.  311 ; 
Whittaker  v.  Wisley,  9  Eng.  L.  &  Eq.  45. 
But  Judge  Prentiss,  In  re  Wellman,  20 
Vt.  693,  denies  that  priorities  will  be 
considered,  except  in  questions  concern- 
ing private  acts  and  transactions,  and 
treats  the  whole  subject  with  great  learn- 
ing and  ability,  holding  that  the  bankrupt 
law  took  effect  at  the  earliest  moment  of 
the  day  on  which  it  was  approved.] 

3  Stein  V.  Bowman,  13  Pet.  209. 

*  Jackson  v.  Pesked,  1  M.  &  S.  234, 
237,  per  Ld.  Ellenborough ;  Stephen  on 
PI.  166,  167 ;  Spiers  v.  Parker.  1  T.  R. 
141  [Lathrop  v.  Stewart,  5  McLean,  1()7  ; 
Sprague  v.  Litherberry,  4  McLean,  442  ; 
Beale  v.  Commonwealth,  25  Penn.  St. 
11 ;  Hordiman  v.  Herbert,  11  Texas,  650. 
In  pleading  a  discharge  in  bankruptcy, 
if  the  plea  shows  the  District  Court  to 
have  had  jurisdiction,  and  to  have  pro- 
ceeded on  the  petition  to  decree  the 
discharge,  all  the  intermediate  steps  will 
be  presumed  to  have  been  regularly 
taken.  Morrison  v,  Woolson.  9  Foster, 
N.  H.  510.  But  the  court  will  not  pre- 
sume there  was  jurisdiction  in  a  case  not 
according  to  the  common  law,  —  divorce 
for  instance,  —  where  the  record  does 
not  show  it.  Com.  v.  Blood,  97  Mass, 
638.] 


26 


LAW   OF  EVIDENCE. 


[PAP.T  1. 


persons  concerned  had  due  notice  of  its  proceedings.^  A  like 
presumj)tion  is  also  sometimes  drawn  from  the  solemnity  of  the 
act  done,  though  not  done  in  com-t.  Thus  a  bond  or  other 
specialty  is  presumed  to  have  been  made  upon  good  consideration^ 
.IS  long  as  the  instrument  remains  unimpeached.^ 

§  20.  Presumption  from  lapse  of  time,  and  from  the  act  done. 
To  this  class  of  legal  presumptions  may  be  referred  one  of  the  ap- 
plications of  the  ride,  "  Ex  diuturnitate  temporis  omnia  prtesu- 
muuturrite  et  solenniter  esse  acta ;  "  namely,  that  which  relates  to 
transactions,  which  are  not  of  record,  the  proper  evidence  of 
which,  after  the  lapse  of  a  little  time,  it  is  often  impossible,  or 
extremely  difficult  to  produce.  The  rule  itself  is  nothing  more 
than  the  principle  of  the  statutes  of  limitation,  exj)ressed  in  a 
different  form,  and  applied  to  other  subjects.  Thus,  where  an 
authority  is  given  by  law  to  executors,  administrators,  guardians, 
or  other  officers  to  make  sales  of  lands,  upon  being  duly  licensed 
by  the  courts,  and  they  are  required  to  advertise  the  sales  in  a 
particular  manner,  and  to  observe  other  formalities  in  their  pro- 
ceedings ;  the  lapse  of  sufficient  time  (which  in  most  cases  is 
fixdd  at  thirty  years)  ,^  raises  a  conclusive  presumption  that  all 


1  Brown  v.  Wood,  17  Mass.  68.  A 
former  judgment,  still  in  force,  by  a 
court  of  competent  jurisdiction,  in  a 
suit  between  the  same  parties,  is  conclu- 
sive evidence,  upon  tiie  matter  directly 
in  question  in  such  suit,  in  any  subse- 
quent action  or  proceeding.  Ducliess  of 
Kingston's  case,  11  Howell,  St.  2(31  ;  Fer- 
rer's case,  G  Co.  7.  The  effect  of  judg- 
ments will  be  farther  considered  here- 
after.    See  infra,  §§  528-543. 

'^  Lowe  V.  Peers,  4  Burr.  2225.  [But 
the  amount  may  be  questioned.  Post,  § 
26,  n.] 

8  See  Pejcpscot  Prop'rs  v.  Ransom, 
14  Mass.  145;  Blossom  v.  Cannon,  Id. 
177;  Colman  v.  Anderson,  10  Mass.  105. 
In  some  cases,  twenty  years  has  been 
held  sufficient.  As.  in  favor  of  the  acts 
of  sheriffs.  Drouet  v.  Rice,  2  Rob. 
(La.)  374.  So,  after  partition  of  lands 
by  an  incorporated  land  company,  and 
a  several  ])ossession,  accordingly,  for 
twenty  years,  it  was  presumed  that  its 
meetings  were  duly  notified.  Society, 
&c.  V.  Wheeler,  1  N.  H.  310  [see  also 
King  V.  Little,  1  Cush.  436;  Freeman 
V.  Thayer,  33  Maine,  7G ;  Cobleigh  v. 
Young,  15  N.  II.  403;  Freeholders  of 
Hudson  Co  V.  State,  4  Zabr.  718;  State 
t'.  Lewis,  2  N.  J.  504;  Allegheny  v. 
Nelson,   25   Penn.  St.   332 ;   Plunk-road 


Co.  V.  Bruce,  6  Md.  457;  Emmons  v. 
Oldham,  12  Texas,  18.  Where  nine 
3'ears  before  the  commencement  of  tlie 
suit,  a  meeting  of  a  proprietary  had 
been  called,  on  the  application  of  certain 
persons  representing  themselves  to  be 
proprietors,  it  was  held  that  tliere  was 
no  legal  presumption  that  the  petitioners 
for  the  meeting  were  jjroprietors,  how- 
ever the  rule  might  be  as  to  ancient 
transactions,  but  that  proof  of  some 
kind,  to  show  the  fact  that  they  were 
proprietors,  must  be  adiluced  to  sustain 
the  issue.  Stevens  v.  Taft,  3  Grav,  487] ; 
Williams  i'.  Eyton,  4  II.  &  N.  357;  s.  c. 
5  Jur.  N.  s.  770.  [For  other  presumptions 
of  this  kind,  not  conclusive,  see  post, 
§  38  a.  Where  the  evidence  fails  to  show 
affirmatively  that  an  administrator's  bond 
was  approved  in  writing  by  the  judge  of 
probate,  and  the  contrary  does  not  ap- 
pear,—  if  the  case  discloses  that  all  the 
other  necessary  steps  were  taken  with 
strictness  and  accuracy  :  that  tiie  sale 
was  public,  that  the  purchaser  entered 
immediately  and  has  occupied  for  more 
than  twenty  years,  that  by  law  the  bond 
must  be  approved  i)efore  filing,  and  that 
it  was  fileil,  —  the  law  will  presume  that 
all  was  done  necessary  U)  give  tiie  ])ur- 
chaser  a  perfect  title.  Austin  v.  Austin, 
60  Maine,  74.] 


CHAP.  IV.]  or   PKESmSIPTIVE  EVIDENCB.  27 

the  legal  formalities  of  the  sale  were  observed.  The  license  to 
sell,  as  well  as  the  official  character  of  the  party,  being  provable 
by  record  or  judicial  registration,  must  in  general  be  so  proved ; 
and  the  deed  is  also  to  be  proved  in  the  usual  manner ;  it  is  only 
the  intermediate  proceedings  that  are  presumed.  "  Probatis  extre- 
mis, prsesumuntur  media."^  The  reason  of  this  rule  is  found  in 
the  great  probability,  that  the  necessary  intermediate  proceed- 
ings were  all  regularly  had,  resulting  from  the  lapse  of  so  long  a 
period  of  time,  and  the  acquiescence  of  the  parties  adversely  ia- 
terested ;  and  in  the  great  uncertainty  of  titles,  as  well  as  the 
other  public  mischiefs,  which  would  result,  if  strict  proof  were 
required  of  facts  so  transitory  in  their  nature,  and  the  evidence 
of  which  is  so  seldom  preserved  with  care.  Hence,  it  does  not 
extend  to  records  and  public  documents,  which  are  supj)osed 
always  to  remain  in  the  custody  of  the  officers  charged  with  their 
preservation,  and  wliich,  therefore,  must  be  proved,  or  their  loss 
accounted  for,  and  supplied  by  secondary  evidence.^  Neither 
does  the  rule  apply  to  cases  of  prescription.^ 

§  21.  Ancient  instruments  presumed  to  be  genuine.  The  same 
principle  applies  to  the  proof  of  the  execution  of  ancient  deeds 
and  ivills.  Where  these  instruments  are  more  than  thirty  years 
old,  and  are  unblemished  by  any  alterations,  they  are  said  to 
prove  themselves ;  the  bare  production  thereof  is  sufficient :  the 
subscribing  witnesses  being  presumed  to  be  dead.  This  pre- 
sumption, so  far  as  this  rule  of  evidence  is  concerned,  is  not 
affected  by  proof  that  the  witnesses  are  living.*  But  it  must 
appear  that  the  instrument  comes  from  such  custody  as  to  afford 
a  reasonable  presumption  in  favor  of  its  genuineness  ;  and  that  it 

1  2  Erskine,  Inst.  782  ;  Earle  v.  Baxter,  Rex  v.  Long,  Buckby,  7  East,  45 ;  McKe- 

2  W.  Bl.  1228.     Proof  that  one's  ancestor  nire  v.  Frazer,  9  Ves.  5 ;  Oldnall  v.  Deakin, 

sat  in  the  House  of  Lords,  and  that  no  3  C.  &  P.  402 ;  Jackson  v.  Blanshan,  3 

patent  can  be  discovered,  affords  a  pre-  Johns.  292 ;  Winn  v.  Patterson,  9  Peters, 

sumption  that  he  sat  by  sununons.     Tlie  674,  675;  Bank  United    States  v.   Dan- 

Braye  Peerage,  6  CI.  &  Fin.  657.     See  dridge,  12  Wheat.  70,  71 ;  Ilentliorne  v. 

also,  as  to  presuming  the  autliority  of  Doe,  1  Blaekf.  157 ;   Bennet  v.  Runyon, 

an  executor,  Piatt  v.  McCuUough,  1  Mc-  4   Dana,  422,  424;    Cook    v.  Totten,    6 

Lean,  73.  Dana,   110 ;   Thurston   v.   Masterson,   9 

-  Brunswick   v.   McKeen,   4    Greenl.  Dana,  233;  Hynde  y.  Vattiere,  1  McLean, 

508 ;  Hathaway  y.  Clark,  5  Pick.  490.  115;  Walton  v.  Coulson,  Id.  124;    Nor- 

3  Eldridge  I'.  Knott,  Cowp.  215;  Mayor  thrope  v.  Wright,  24  Wend.  221  [King 

of  Kingston  w.  Horner,  Id.  102.  v.  Little,  1  Cush.  436  ;  Settle  v.  Allison,  8 

*  Bex  V.  Farringdon,  2  T.  R.  471,  per  Geo.  201.     The  thirty  years  to  be  reck- 

Buller,  J. ;  Doe  i'.  WoUey,  8  B.  &  C.  22 ;  .  oned   from   the   time   of   the   testator's 

Bull.  N.  P.  255 ;  12  Vin.  Abr.  84 ;  Gov.  death.      Jackson    ».    Blanshan,  ubi   s\i- 

&c.  of  Chelsea  Waterworks  v.  Cowper,  1  pra\. 
Esp.  275;  Rex  v.  Ryton,  5  T.  R.  259;  1 


28  LAW   OF  EVIDENCE.  [PAET  L 

is  otherwise  free  from  just  grounds  of  suspicion  ;  ^  and,  in  the  case 
of  a  bond  for  the  payment  of  money,  there  must  be  some  indorse- 
ment of  interest,  or  other  mark  of  genuineness,  within  the  thirty 
years,  to  entitle  it  to  be  read.^  Whether,  if  the  deed  be  a  con- 
veyance of  real  estate,  the  party  is  bound  first  to  show  some  acts 
of  possession  under  it,  is  a  point  not  perfectly  clear  upon  the 
authorities ;  but  the  weight  of  opinion  seems  in  the  negative,  as  will 
hereafter  be  more  fully  explained.^  But  after  an  undisturbed 
possession  for  thirty  years,  of  any  property,  real  or  personal,  it  is 
too  late  to  question  the  authority  of  the  agent,  who  has  undertaken 
to  convey  it,*  unless  his  authority  was  by  matter  of  record. 

§  22.  Presumption  from  acts  and  recitals  in  deeds.  Estoppel.  Es- 
toppels may  be  ranked  in  this  class  of  presumptions.  A  man  is 
said  to  be  estopped,  when  he  has  done  some  act,  which  the  policy 
of  the  law  will  not  permit  him  to  gainsay  or  deny.  "  The  law  of 
estoppel  is  not  so  unjust  or  absurd  as  it  has  been  too  much  the 
custom  to  represent."  ^  Its  foundation  is  laid  in  the  obligation 
which  every  man  is  under  to  speak  and  act  according  to  the  truth 
of  the  case,  and  in  the  policy  of  the  law,  to  prevent  the  great 
mischiefs  resulting  from  uncertainty,  confusion,  and  want  of  con- 
fidence, in  the  intercourse  of  men,  if  they  were  permitted  to  deny 
that  which  they  have  deliberately  and  solemnly  asserted  and 
received  as  true.  If  it  be  a  recital  of  facts  in  a  deed,  there  is 
implied  a  solemn  engagement  that  the  facts  are  so  as  they  are 
recited.  The  doctrine  of  estoppels  has,  however,  been  guarded 
with  great  strictness ;  not  because  the  party  enforcing  it  neces- 
sarily wishes  to  exclude  the  truth,  —  for  it  is  rather  to  be  supposed 
that  that  is  true  which  the  opposite  party  has  already  solemnly 
recited,  —  but  because  the  estoppel  may  exclude  the  truth.  Hence, 
estoppels  must  be  certain  to  every  intent ;  for  no  one  shall  be 
denied  setting  up  the  truth,  unless  it  is  in  plain  and  clear  contra- 
diction to  his  former  allegations  and  acts.^ 

'  Roe  V.  Rawlings,  7  East,  279,  291 ;  possession  of  thirty-five  years,  tinder  a 

12  Vin.   Abr.  84   Kvid.  A,  b.   6;   infra,  legislative  grant,  it  was  held  conclusive 

§§  142,  670;   Swinnerton  v.  Marquis  of  evidence   of    a   good   title,    though    the 

Stafford,  3  Taunt.  91 ;  Jackson  v,  Davis,  grant    was    unconstitutional.      Trustees 

6  Cowcn,  123;  Jackson  v.  Luquere,  Id.  of  the  Episcopal  Church  in  Ncwbern  v. 

221 ;  Doe  v.  Beynon,  4  1'.  &  D.  193 ;  Doe  Trustees  of  Ne wbern  Academy,  2  Hawks, 

V.  Samples,  3  Nev.  &  P.  254.  233. 

a  Forbes  v.  Wale,  1  \V.  Bl.  532;  1  Esp.  »  Per  Taunton,  J.,  2  Ad.  &  El.  291. 

278,  8.  c.  infra,  §§  121,  122.  .[See  Cruise's  Dig.  (Greenl.  2d  ed.)  tit. 

8  Infra,  §  144,  n.  (1).  32,  c.  20,  §  64,  n.     (Greenl.  2d  ed.  vol. 

*  Stockbridge  v.    West    Stockbridge,  ii.  p.   Oil.)] 

U  Mass.  257.     Where  there  had  been  a  »*  Bowman  v.  Taylor,  2  Ad.  &  El.  278ii 


CHAP,  rv.] 


OF  PEESUaiPTIVE  EVIDENCE. 


29 


§  23.  Same  subject.  In  regard  to  recitals  in  deeds,  the  general 
rule  is  that  all  parties  to  a  deed  are  bound  by  the  recitals  therein,^ 
•which  operates  as  an  estoppel,  working  on  the  interest  in  tlie 
land,  if  it  be  a  deed  of  conveyance  and  binding  both  parties  and 
privies ;  privies  in  blood,  privies  in  estate,  and  privies  in  law. 
Between  such  parties  and  privies,  the  deed  or  other  matter 
recited  needs  not  at  any  time  be  otherwise  proved,  the  recital  of 
it  in  the  subsequent  deed  being  conclusive.  It  is  not  offered  as 
secondary,  but  as  primary  evidence,  which  cannot  be  averred 
against,  and  which  forms  a  muniment  of  title.  Thus,  the  recital 
of  a  lease,  in  a  deed  of  release,  is  conclusive  evidence  of  the  exist- 
ence of  the  lease  against  the  parties,  and  all  others  claiming 
under  them  in  privity  of  estate.^ 


289,  per  Ld.  C.  J.  Denman ;  Id.  291,  per 
Taunton,  J. ;  Lainson  v.  Tremere,  2  Ad. 
&  El.  792  ;  Pelletrau  v.  Jackson,  11  Wend. 
117  ;  4  Kent,  Comm.  261,  note  ;  Carver  v. 
Jackson,  4  Peters,  83.  [It  must  also  ap- 
pear that  the  party  pleading  the  estop- 
pel is  or  may  he  prejudiced  by  the  act 
on  which  he  claims  to  estop.  Nourse  v. 
Nourse,  116  Mass.  101 ;  Security  Ins.  Co. 
V.  Fay,  22  Mich.  467  ;  Bank  of  Hindustan 
V.  Alison,  L.  K.  6  C.  P.  227.  Estoppels, 
by  matter  of  record  and  by  deed,  will 
not  operate  conclusively  unless  they  be 
expressly  pleaded  when  an  opportunity 
of  pleading  them  has  been  afforded. 
Bradley  v.  Beckett,  7  M.  &  G.  994.  See 
also  2  Smith's  Lead.  Cas.  670  et  seq.  If 
not  pleaded,  they  will  be  presumed  to  be 
waived.  Outram  v.  Morewood,  3  East, 
346;  Matthew  v.  Osborne,  13  C.  B.  919; 
AVilson  V.  Butler,  4  Bing.  N.  C.  748; 
Young  V.  Raincock,  7  C.  B.  310.  If,  how- 
ever, no  opportunity  has  been  afforded  to 
plead,  they  may  be  offered  in  evidence 
with  the  same  effect  as  if  pleaded.  Adams 
V.  Barnes,  17  Mass.  365;  Trevivan  v. 
Lawrence,  1  Salk.  276 ;  Lord  Feversham 
V.  Emerson,  11  Exch.  385.] 

1  But  it  is  not  true,  as  a  general  propo- 
sition, that  one  claiming  land  under  a 
deed  to  which  he  was  not  a  party,  adopts 
the  recitals  of  facts  in  an  anterior  deed, 
which  go  to  make  up  his  title.  There- 
fore, where,  by  a  deed  made  in  January, 
1796,  it  was  recited  that  S.  became  bank- 
rupt in  1781,  and  that,  by  virtue  of  the 
proceedings  under  the  commission,  cer- 
tain lands  had  been  conveyed  to  W.,  and 
thereupon  W.  conveyed  the  same  lands 
to  B.  for  the  purpose  of  enabling  him  to 
make  a  tenant  to  the  prcecipe  ;  to  which 
deed  B.  was  not  a  party ;  and  afterwards, 
in  February,  1796,  B.  by  a  deed,  not  re- 


ferring to  the  deed  last  mentioned,  nor 
to  the  bankruptcy,  conveyed  the  prem- 
ises to  a  tenant  to  the  prcecipe,  and  de- 
clared the  uses  of  the  recovery  to  be  to 
his  mother  for  life,  remainder  to  himself 
in  fee;  it  was  held  that  B.,  in  a  suit  re- 
specting other  land,  was  not  estopped 
from  disputing  S.'s  bankruptcy.  Doe  v. 
Slielton,  3  Ad.  &  El.  265,  283.  If  the 
deed  recite  that  the  consideration  was 
paid  by  a  husband  and  wife,  parol  evi- 
dence is  admissible  to  show  that  the 
money  consisted  of  a  legacy  given  to  the 
M'ife.     Doe  v.  Statham,  7  D.  &  Ky.  141. 

2  Shelly  V.  Wright,  Willes,  9 ;  Crane 
V.  Morris,  6  Peters,  611 ;  Carver  v.  Jack- 
son, 4  Peters,  1,  83;  Cossens  v.  Cossens, 
Willes,  25.  But  such  recital  does  not 
bind  strangers,  or  those  who  claim  by 
title  paramount  to  the  deed.  It  does 
not  bind  persons  claiming  by  an  adverse 
title,  or  persons  claiming  from  the  par- 
ties by  a  title  anterior  to  the  date  of  the 
reciting  deed.  See  Carver  v.  Jackson, 
ubi  supra.  In  this  case,  the  doctrine  of 
estoppel  is  very  fully  expounded  by  Mr. 
Justice  Story,  where,  after  stating  the 
general  principle,  as  in  the  text,  with 
the  qualification  just  mentioned,  he  pro- 
ceeds (p.  8-3)  as  follows:  "Such  is  the 
general  rule.  But  there  are  cases  iu 
which  such  a  recital  may  be  used  as  evi- 
dence even  against  strangers.  If,  for 
instance,  there  be  the  recital  of  a  lease 
in  a  deed  of  release,  and  in  a  suit  against 
a  stranger  the  title  under  the  release 
comes  in  question,  there  the  recital  of 
the  lease  in  such  a  release  is  not  per  se 
evidence  of  the  existence  of  the  leaje. 
But  if  the  existence  and  loss  of  the  lease 
be  established  by  other  evidence,  there 
the  recital  is  admissible,  as  secondary 
proof,  in  the  absence   of  more  perfect 


30 


LAW   OF  EVIDENCE. 


[PAET  I. 


§  24.  Estoppel.     Thus,  also,  a  grantor  is,  in  general,  estopped  by 
his  deed  from  denying  that  he  had  any  title  in  the  thing  granted. 


evidence,  to  establish  the  contents  of  the 
lease ;  and  if  the  transaction  be  an  an- 
cient one,  and  the  possession  has  been 
long  lield  under  such  release,  and  is  not 
otherwise  to  be  accounted  for,  tliere  the 
recital  will  of  itself,  under  sucli  circum- 
Btances,  materially  fortify  the  presump- 
tion, from  lapse  of  time  and  length  of 
possession,  of  the  original  existence  of 
the  lease.  Leases,  like  other  deeds  and 
grants,  may  be  presumed  from  long  pos- 
session, which  cannot  otherwise  be  ex- 
plained ;  and,  under  such  circumstances, 
a  recital  of  the  fact  of  such  a  lease  in  an 
old  deed  is  certainly  far  stronger  pre- 
sumptive proof  in  favor  of  such  posses- 
sion under  title,  than  the  naked  presump- 
tion arising  from  a  mere  unexplained 
possession.  Such  is  the  general  result 
of  the  doctrine  to  be  found  in  tlie  best 
elementary  writers  on  the  subject  of 
evidence.  It  may  not,  however,  be  un- 
important to  examine  a  few  of  the  au- 
thorities in  support  of  the  doctrine  on 
which  we  rely.  The  cases  of  Marchioness 
of  Anandale  v.  Harris,  2  P.  Wnis.  432,  and 
Slielly  V.  Wright,  Willes,  9,  are  suffi- 
ciently direct,  as  to  the  operation  of  re- 
citals by  way  of  estoppel  between  the 
parties.  In  Ford  v.  Gray,  1  Salk.  285, 
one  of  the  points  ruled  was  'that  a  re- 
cital of  a  lease  in  a  deed  of  release  is 
good  evidence  of  such  lease  against  the 
releasor,  and  those  who  claim  under  him; 
but,  as  to  others,  it  is  not,  without  prov- 
ing that  there  was  such  a  deed,  and  it 
was  lost  or  destroyed.'  The  same  case 
is  reported  in  G  Mod.  44,  where  it  is  said 
that  it  was  ruled,  '  that  the  recital  of  a 
lease  in  a  deed  of  release  is  good  evi- 
dence against  the  releasor,  and  those 
that  claim  under  him.'  It  is  then  stated, 
that  'a  fine  was  produced,  but  no  deed 
declaring  the  uses  ;  but  a  deed  was  oifercd 
in  evidence,  whicii  did  recite  a  deed  of 
limitation  of  the  uses,  and  the  question 
was,  whetlier  that  [recital]  was  evidence; 
and  tiie  court  said,  that  the  bare  recital 
was  not  evidence  ;  but  that,  if  it  could  be 
proved  that  such  a  deed  had  been  [exe- 
cuted], an  J  [is]  lost,  it  would  do  if  it 
were  recited  na  another.'  This  was, 
doubtless,  the  same  point  asserted  in  the 
latter  clause  of  the  report  in  Salkeld ; 
and,  thus  explained,  it  is  perfectly  con- 
sistent with  the  statement  in  Salkeld ; 
and  must  be  rcferreil  to  a  case  where  the 
recital  was  offered  as  evi<k'nce  against  a 
stranger.  In  any  other  point  of  view,  it 
would  be  inconsistent  with  the  preceding 


propositions,  as  well  as  with  the  cases  in 
2  P  Williams  and  Willes.  In  Trevivan 
V.  Lawrence,  1  Salk.  276,  the  court  held, 
that  the  parties  and  all  claiming  under 
them  were  estopped  from  asserting  that 
a  judgment,  sued  against  the  party  as  of 
Trinity  term,  was  not  of  that  term,  but 
of  another  term ;  that  very  point  having 
arisen  and  been  decided  against  the 
party  upon  a  scire  facias  on  the  judg- 
ment. But  the  court  there  held  (wliat 
is  very  material  to  the  present  purpose), 
that,  '  if  a  man  make  a  lease  by  indenture 
of  D  in  which  he  hath  nothing,  and  after- 
wards purchases  D  in  fee,  and  afterwards 
bargains  and  sells  it  to  A  and  his  heirs, 
A  shall  be  bound  by  this  estoppel ;  and, 
that  where  an  estoppel  works  on  the  in- 
terest of  the  lands,  it  runs  with  the  land 
into  whose  hands  soever  the  land  comes ; 
and  an  ejectment  is  maintainable  upon 
the  mere  estoppel.'  This  decision  is  im- 
portant in  several  respects.  In  the  first 
place,  it  shows  that  an  estoppel  may 
arise  by  implication  from  a  grant,  that 
the  party  hath  an  estate  in  the  land, 
which  he  may  convey,  and  he  shall  be 
estopped  to  deny  it.  In  the  next  place, 
it  siiows  that  such  estoppel  binds  all  per- 
sons claiming  the  same  land,  not  only 
under  the  same  deed,  but  under  any 
subsequent  conveyance  from  the  same 
party ;  that  is  to  say,  it  binds  not  merely 
privies  in  blood,  but  privies  in  estate,  as 
subsequent  grantees  and  alienees.  In 
the  next  place,  it  shows  that  an  estop- 
pel, whicli  (as  the  phrase  is)  works  on 
the  interest  of  the  land,  runs  with  it,  into 
whosesoever  hands  the  land  conies.  The 
same  doctrine  is  recognized  by  Lord 
Cliief  Baron  Comyns,  in  his  Digest,  Es- 
toppel, B  &  E,  10.  In  the  latter  place 
(E,  10)  he  puts  the  case  more  strongly; 
for  he  asserts,  that  the  estopjiel  binds, 
even  though  all  the  facts  are  found  in  a 
special  verdict.  '  But,'  says  ho,  and  he 
relies  on  his  own  authority,  '  where  an 
estoppel  binds  the  estate  and  converts  it 
to  an  interest,  the  court  will  adjudge  ac- 
cordingly. As  if  A  leases  land  to  B  for 
six  years,  in  whicli  he  has  nothing,  and 
then  purchases  a  lease  of  the  same  land 
for  twenty-one  years,  and  afterwards 
leases  to  C  for  ten  years,  and  all  this  is 
found  l)y  a  verdict ;  the  court  will  ad- 
judge tlie  lease  to  B  good,  though  it  be 
so  only  by  conclusion.'  A  doctrine  simi- 
lar in  principle  was  asserted  in  this  court, 
in  Terrett  v.  Taylor,  9  Cranch,  52.  The 
distinction,  then,  which  was  urged  at  the 


CHAP.  IV.] 


OF  PEESUMPTIVE  EVIDENCE. 


31 


But  this  rule  does  not  apply  to  a  grantor  acting  officially,  as  a  public 
agent  or  trustee.^  A  covenant  of  warranty  also  estops  the  grantor 
from  setting  up  an  after-acquired  title  against  the  grantee,  for  it 
is  a  perpetually  operating  covenant ;  ^  but  he  is  not  thus  estopped 


bar,  that  an  estoppel  of  this  sort  binds 
tliose  claiming  under  the  same  deed,  but 
not  those  claiming  by  a  subsequent  deed 
under  tlie  same  party,  is  not  well  founded. 
All  privies  in  estate  bj'  a  subsequent  deed 
are  boimd  in  tlie  same  manner  as  privies 
in  blood ;  and  so,  indeed,  is  the  doctrine 
of  Comyns's  Digest,  Estoppel  B,  and  in 
Co.  Lit.  352  a.  We  ;nay  now  pass  to  a 
short  review  of  some  of  the  American 
cases  on  this  subject.     Denn  v.  Cornell, 

3  Johns.  Cas.  174,  is  strongly  in  point. 
There,  Lieutenant-governor  Golden,  in 
1775,  made  his  will,  and  in  it  recited  that 
he  had  conveyed  to  bis  son  David  his 
lands  in  the  township  of  Flushing,  and 
he  then  devised  his  other  estate  to  his 
sons  and  daughters,  &c.,  &c.  Afterwards, 
David's  estate  was  confiscated  under  the 
act  of  attainder,  and  the  defendant  in 
ejectment  claimed  under  that  confisca- 
tion, and  deduced  his  title  from  the  State. 
No  deed  of  the  Flushing  estate  (the  land 
in  controversy)  was  proved  from  the 
father ;  and  the  heir  at  law  sought  to 
recover  on  that  ground.  But  the  court 
held  that  the  recital  in  the  will,  that  the 
testator  had  conveyed  the  estate  to 
David,  was  an  estoppel  of  the  heir  to 
deny  tliat  fact,  and  bound  the  estate.  In 
this  case,  the  estoppel  was  set  up  by  the 
tenant  claiming  under  the  State,  as  an 
estoppel  running  with  the  land.  If  the 
State  or  its  grantee  might  set  up  the  es- 
toppel in  favor  of  their  title,  then,  as 
estoppels  are  reciijrocal,  and  bind  both 
parties,  it  might  have  been  set  up  against 
the  State  or  its  grantee.  It  has  been  said 
at  the  bar,  that  the  estate  is  not  bound 
by  estoppel  by  any  recital  in  a  deed. 
That  may  be  so  where  the  recital  is  in 
his  own  grants  or  patents,  for  they  are 
deemed  to  be  made  upon  suggestion  of 
the  grantee.  (But  see  Commonwealth 
V.  Pejepscot  Proprietors,  10  Mass.  155.) 
But  where  the  State  claims  title  under 
tlie  deed,  or  other  solemn  acts  of  third 
persons,  it  takes  it  cum.  onere,  and  sub- 
ject to  all  the  estoppels  running  with  the 
title  and  estate,  in  the  same  way  as  other 
privies  in  estate.     In  Penrose  v.  Griffith, 

4  Binn.  231,  it  was  held  that  recitals  in 
a  patent  of  the  Commonwealth  were  evi- 
dence against  it,  but  not  against  persons 
claiming  by  a  title  paramount  from  the 
Commonwealth.  The  court  there  said, 
that  the  rule  of  law  is  that  a  deed  con- 


taining a  recital  of  another  deed  is  evi- 
dence of  the  recited  deed  against  the 
grantor,  and  all  persons  claiming  by  title 
derived  from  him  subsequently.  The 
reason  of  the  rule  is,  that  the  recital 
amounts  to  the  confession  of  the  party ; 
and  that  confession  is  evidence  against 
himself,  and  those  who  stand  in  his  place. 
But  such  confession  can  be  no  evidence 
against  strangers.  The  same  doctrine 
was  acted  upon  and  confirmed  by  the 
same  court,  in  Garwood  v.  Dennis,  4 
Binn.  314.  In  that  case,  the  court  further 
held  that  a  recital  in  another  deed  was 
evidence  against  strangers,  where  the 
deed  was  ancient  and  the  possession  was 
consistent  with  the  deed.  That  case 
also  had  the  peculiarity  belonging  to  the 
present,  that  the  possession  was  of  a 
middle  nature;  that  is,  it  might  not  have 
been  held  solely  in  consequence  of  the 
deed,  for  the  party  had  another  title :  but 
there  never  was  any  possession  against  it. 
There  was  a  double  title,  and  the  ques- 
tion was,  to  which  the  possession  might 
be  attributable.  The  court  thought  that, 
a  suitable  foundation  of  the  original  ex- 
istence and  loss  of  the  recited  deed  being 
laid  in  the  evidence,  the  recital  in  the 
deed  was  good  corroborative  evidence, 
even  against  strangers.  And  other  au- 
thorities certainly  warrant  this  decision." 
[Nor  does  the  rule  of  estoppel  apply  to 
any  other  parts  of  the  deed  than  those 
actually  recited.  If  any  other  part  is 
relied  upon,  it  must  be  proved.  Gillett  v. 
Abbott,  7  A.  &  E.  783.  A  recital,  in  a 
statute,  of  a  previous  grant  by  the  State 
is  prima  fade  evidence  at  least  of  a  grant 
as  against  the  State.  Lord  v.  Bigclow,  8 
Vt.  460 ;  State  v.  Beard,  1  Ind.  460.  A 
recital  in  an  approved  bond  that  the  ob- 
ligor, the  plaintiff,  is  licensed  to  sell  in- 
toxicating liquors,  is  evidence  of  that  fact 
in  his  favor  if  the  bond  be  put  in  by  the  de- 
fendant. Wells  V.  Greeley,  50  Maine.  78. 
The  acceptance  of  a  deed  by  a  grantee 
makes  the  recitals  evidence  against  him, 
but  not  against  a  botia  Jide  purchaser 
from  him  without  notice,  as  where  the 
deed  to  the  grantee  was  not  recorded 
before  the  purchase.  Schuylkill,  Slc,  Ins. 
Co.  V.  McCrearv,  58  Penn.  304.] 

1  Fairtitle  v.' Gilbert,  2  T.  R.  171 ;  Co. 
Lit.  363  b. 

'  Terrett  v.  Taylor,  9  Cranch,  43; 
Jackson  v.  Matsdorf,  11  Johns.  97 ;  Jack- 


32  LAW   OF   EVIDENCE.  [PAET  I. 

by  a  covenant,  that  he  is  seised  in  fee  and  has  good  right  to  con- 
vey ;  1  for  any  seisin  in  fact,  though  by  wrong,  is  sufficient  to 
satisfy  this  covenant,  its  import  being  merely  tliis,  that  he  has 
the  seisin  in  fact,  at  the  time  of  conveyance,  and  thereby  is  quali- 
fied to  transfer  the  estate  to  the  grantee.^  Nor  is  a  feme  covert 
estopped,  by  her  deed  of  conveyance,  from  claiming  the  land  by 
a  title  subsequently  acquired  ;  for  she  cannot  bind  herself  per- 
sonally by  any  covenant.^  Neither  is  one  who  has  purchased 
land  in  his  own  name,  for  the  benefit  of  another,  which  he  has 
afterwards  conveyed  by  deed  to  his  employer  estopped  by  such 
deed,  from  claiming  the  land  by  an  elder  and  after-acquired  title.* 
Nor  is  the  heir  estopped  from  questioning  the  validity  of  his 
ancestor's  deed,  as  a  fraud  against  an  express  statute.^  The 
grantee,  or  lessee,  in  a  deed-poll,  is  not,  in  general,  estopped 
from  gainsaying  any  thing  mentioned  in  the  deed ;  for  it  is  the 
deed  of  the  grantor  or  lessor  only ;  yet  if  such  grantee  or  lessee 
claims  title  under  the  deed,  he  is  thereby  estopped  to  deny  the 
title  of  the  grantor.^ 

§  25.  Same  subject.  It  was  an  early  rule  of  feudal  policy,  that 
the  tenant  should  not  be  permitted  to  deny  the  title  of  the  lord, 
from  whom  he  had  received  investiture,  and  whose  liegeman  he 
had  become ;  but,  as  long  as  that  relation  existed,  the  title  of  the 
lord  was  conclusively  presumed  against  the  tenant,  to  be  perfect 
and  valid.  And  though  the  feudal  reasons  of  the  rule  have  long 
since  ceased,  yet  other  reasons  of  public  policy  have  arisen  in 
their  place,  thereby  preserving  the  rule  in  its  original  vigor.  A 
tenant,  therefore,  by  indenture,  is  not  permitted,  at  this  day,  to 
deny  the  title  of  his  lessor,  while  the  relation  thus  created  sub- 
sists.    It  is  of  the  essence  of  the  contract  under  which  he  claims, 


son  V.  "Wright,  14  Johns.  183;  McWil-  followed  in   some  of  the  other  States, 

liams   V.  Nisby,  2   Scrg.   &  Ravvl.  515;  where  it  is  held  that  covenants  of  seisin 

Somes  V.  Skinner,  3  Pick.  52.  [See  Blanch-  bind  the  party  to  show  that  he  had  good 

ard  V.   Ellis,   1    Gray,   105.      And    tlie  title  at  the  date  of  the  covenant.     See 

grantor's  privies   in   estate  are  also  cs-  Richardson  v.   Dorr,  5  Vt.   9;    Hosmer, 

topped,  though  the  grantor  had  no  title  C.   J.,  in    Lockwood    v.    Sturdcvant,    G 

when  he  conveyed.     White  r.  Patten,  24  Conn.  373.] 

Pick.  (Mass.)  324.      Bat  such   a  cove-  *  Jackson  v.  Vanderhayden,  17  Johns, 

nant  does   not  estop  the  grantor  from  167  [Lowell  v.  Daniels,  2  Gray,  101]. 

claiming  a  way  of  necessity  over  the  land  *  Jackson   v.  Mills,  13  Johns.  463;  4 

granted.    Brigham  v.  Smith,  4  Gray,  2!»7.]  Kent,  Comm.  200,  201,  n. 

1  Allen  V.  Sayward,  5  Greenl.  227.  »  Doe  v.  Lloyd,  8  Scott,  03. 

2  Marston  v.  Ilobbs,  2  Mass.  4.33;  »  Co.  Lit.  303  b;  Goddard's  case,  4 
Bearce  v.  Jackson,  4  Mass.  408;  Twom-  Co.  4.  But  he  is  not  always  concluded 
biy  V.  Henly,  Id.  441 ;  ChapcU  r.  Bull,  17  by  recitals  in  anterior  title-deeds.  See 
Mass.  213.     [These  cases  have  not  been  supra,  §  23,  n. 


CHAP,  rr.]  OF  PKESUlMPTrYE  EVIDENCE.  33 

that  tlie  paramount  ownership  of  the  lessor  shall  be  acknowledged 
during  the  continuance  of  the  lease,  and  that  possession  shall  be 
surrendered  at  its  expiration.  He  could  not  controvert  this  title 
without  breaking  the  faith  which  he  had  pledged.^  But  this 
doctrine  does  not  apply  with  the  same  force,  and  to  the  same 
extent  between  other  parties,  such  as  releasor  and  releasee,  where 
the  latter  has  not  received  possession  from  the  former.  In  such 
cases,  where  the  party  already  in  possession  of  land,  under  a 
claim  of  title  by  deed,  purchases  peace  and  quietness  of  enjoy- 
ment, by  the  mere  extinction  of  a  hostile  claim  by  a  release,  with- 
out covenants  of  title,  he  is  not  estopped  from  denying  the  validity 
of  the  title,  which  he  has  thus  far  extinguished.^  Neither  is  this 
rule  applied  in  the  case  of  a  lease  already  expired ;  provided  the 
tenant  has  either  quitted  the  possession,  or  has  submitted  to  the 
title  of  a  new  landlord  ;  ^  nor  is  it  applied  to  the  case  of  a  tenant, 
who  has  been  ousted  or  evicted  by  a  title  paramount ;  or  who  has 
been  drawn  into  the  contract  by  the  fraud  or  misrepresentation 
of  the  lessor,  and  has,  in  fact,  derived  no  benefit  from  the  posses- 
sion of  the  land.*  Nor  is  a  defendant  in  ejectment  estopped  from 
showing  tliat  the  party,  under  whom  the  lessor  claims,  had  no  title 
when  he  conveyed  to  the  lessor,  although  the  defendant  himself 
claims  from  the  same  party,  if  it  be  by  a  subsequent  conveyance.^ 
§  26.  Restricted  to  particulars.  Tliis  rule  in  regard  to  the  con- 
clusive effect  of  recitals  in  deeds  is  restricted  to  the  recital  of 
things  in  particular,  as  being  in  existence  at  the  time  of  the  exe- 
cution of  the  deed ;  and  does  not  extend  to  the  mention  of  things 
in  general  terms.  Therefore,  if  one  be  bound  in  a  bond,  con- 
ditioned to  perform  the  covenants  in  a  certain  indenture,  or  to 
pay  the  money  mentioned  in  a  certain  recognizance,  he  shall  not 
be  permitted  to  say  that  there  was  no  such  indenture  or  recog- 

1  Com.  Dig.  Estoppel,  A,  2 ;  Craig,  ted,  directing  his  lessee  in  future  to  pay 
Jus.  Feud,  lib"  3,  tit.  5,  §§  1,  2;  Blight's  the  rent  to  the  stranger;  it  was  held,  that 
Lessee  v.  Kochestcr,  7  Wheat.  535,  547.  the  lessor  was  estopped  from  afterwards 
[The  assignee  of  a  lease,  who  enters  upon  treating  the  lessee  as  his  tenant ;  and  that 
and  occupies  the  premises,  is  estopped  the  tenant,  upon  the  lessor  afterwards 
in  an  action  for  the  rent,  brought  against  distraining  for  rent,  was  not  stopped  to 
him  by  the  original  lessor,  to  deny  the  allege,  that  the  right  of  the  latter  had 
validity  of  the  assignment  by  the  original  expired.  Downs  v.  Cooper,  2  Ad.  &  El. 
lessee   to   him.    Blake  v.  Sanderson,   1  n.  s.  252. 

Gray,  332.]  3  England  r.  Slade,  4  T.  R.  681 ;  Balls 

2  ITox    v.   "VYidgery,    4    Greenl.   214;     u.  Westwood,  2  Campb.  11. 

Blight's  Lessee  y."^  Rochester,  7  "Wheat.  «  Havne  i\  Maliby,  3T.R.438;  Hearn 

535,  547;   Ham   v.  Ham,  2    Shepl.  351.  r.  Tomlin,  Peake's  Cas.  191. 
Thus,  where  a  stranger  set  up  a  title  to  ^  Doe  v.  Payne,  1  Ad.  &  El.  538. 

the  premises,  to  which  the  lessor  submit- 


34 


LAW   OF  EVIDENCE. 


[part  I. 


nizance.  But  if  tlie  bond  be  conditioned,  that  the  obligor  shall 
perform  all  the  agreements  set  down  by  A.,  or  carry  away  all  the 
marl  in  a  certain  close,  he  is  not  estopped  by  this  general  condi- 
tion from  saying,  that  no  agreement  was  set  down  by  A.,  or  that 
there  was  no  marl  in  the  close.  Neither  does  this  doctrine  apply 
to  that  which  is  mere  description  in  the  deed,  and  not  an  essen- 
tial averment:  such  as  the  quantity  of  land  ;  its  natiu-e,  whether 
arable  or  meadow ;  the  number  of  tons  in  a  vessel  chartered  by 
the  ton ;  or  the  like ;  for  these  are  but  incidental  and  collateral 
to  the  principal  thing,  and  may  be  supposed  not  to  have  received 
the  deliberate  attention  of  the  parties.-^ 


1  4  Com.  Dig.  Estoppel,  A,  2 ;  Yelv. 
227  (by  JMetcalf),note  (1);  Doddington's 
case,  2  Co.  33;  Skipworth  v.  Green,  8 
Mod.  311 ;  s.  c.  1  Stra.  610  [Carpenter  v. 
Buller,  8  M.  &  W.  212].  Whether  the 
recital  of  the  payment  of  tlie  consider- 
ation-money, in  a  deed  of  conveyance, 
falls  within  the  rule,  by  which  the  party 
is  estopped  to  deny  it,  or  belongs  to  the 
exceptions,  and  therefore  is  open  to  op- 
posing proof,  is  a  point  not  clearly  agreed. 
In  England,  the  recital  is  regarded  as 
conclusive  evidence  of  payment,  binding 
the  parties  by  estoppel.  Shelly  v.  Wright, 
Willes,  9;  Cossens  v.  Cossens,  Id.  25; 
Rowntree  v.  Jacob,  2  Taunt.  141 ;  Lara- 
pon  I'.  Corke,  5  B.  &  Ahl.  OOG ;  Baker  v. 
Dewey,  1  B.  &  C.  704 ;  Hill  v.  Manchester, 
and  Salford  Water  Works,  2  B.  &  Aid. 
544.  See  also  Powell  v.  Monson,  3  Mason, 
347,  351,  356.  But  the  American  courts 
have  been  disposed  to  treat  the  recital 
of  the  amoitnt  of  the  money  paid,  like 
the  mention  of  tlie  date  of  the  deed,  the 
quantity  of  land,  the  amount  of  tonnage 
of  a  vessel,  and  other  recitals  of  quantity 
and  value,  to  which  the  attention  of  the 
parties  is  supposed  to  have  been  but 
slightly  directed,  and  to  which,  there- 
fore, the  principle  of  estoi)pels  does  not 
ai)i)Iy.  Hence,  thougli  the  party  is  es- 
topped from  denying  tiie  conveyance, 
and  that  it  was  for  a  valuable  consider- 
ation, yet  the  weight  of  Auierican  au- 
tiiority  is  in  favor  of  trea'ting  the  re- 
cital as  only  i>riiiia  /((c/e*fevidence  of  the 
amount  paid,  in  an  flfltion  of  covenant 
by  the  grantee  to  i/cDVer  back  the  con- 
sideration, or,  in  an  action  of  assiiiiii>sit 
by  the  grantor,  to  recover  the  price 
which  is  yet  unpaid.  The  principal 
cases  are,  —  in  Massachnxdls,  Wilkinson 
r.  Scott,  17  Mass.  240;  Clapp  i-.  Tirrell, 
20  Pick.  247;  Livcrmore  r.  Aldrich,  5 
Cush.  431 :  in  Maine,  Schilenger  v.  Mc- 


Cann,  6  Greenl.  364;  Tyler  v.  Carlton,  7 
Greenl.  175;  Emiuons  v.  Littlefield,  1 
Sliepl.  233;  Burbank  v.  Gould,  3  Shepl. 
118:  in  Vermont,  Beach  U.Packard,  10 
Verm.  OG :  in  New  liampsldre,  Morse  v. 
Shattuck,  4  New  Hamp.  229;  Pritchard 
V.  Brown,  Id.  397 :  in  Connecticut,  BeldeQ 
r.  Seymour,  8  Conn.  304:  in  Neiv  York, 
Shepherd  v.  Little,  14  Johns.  210 ;  Bowen 
v.BcW,  20  Johns.  388;  Whitbeck  ?-.  Whit- 
beck,  9  Cowen,  2GG ;  McCrea  i\  Purmort, 
IG  Wend.  4G0:  in  Pennsijlvanin,  Wcigly 
V.  Weir,  7  Serg.  &  Rawlc,  311 ;  Watson  v. 
Blaine,  12  Serg.  &  Rawle,  131 ;  Jack  v. 
Dougherty',  3  Watts,  151 :  in  Marijland, 
Higdon  V.  Thomas,  1  Har.  &  Gill',  139; 
Lingan  v.  Henderson,  1  Bland,  Ch.  2oG, 
249:  in  Vinjinia,  Duval  v.  Bihl),  4  Hen. 
&  Munf.  113;  Harvey  v.  Alexander,  1 
Randolph,  219:  in  South  Carolina,  Curry 
V.  Lyles,  2  Hill,  404 ;  Garret  v.  Stuart,  1 
McCord,  514 :  in  Alabama,  Mead  r.  Ste- 
ger,  5  Porter,  498,  507 :  in  Tennessee, 
Jones  V.  Ward,  10  Ycrger,  100,  1G6:  in 
Kentiickif,  Hutchinson  v.  Sinclair,  7  Mon- 
roe, 291,  293;  Gully  v.  Grubbs,  1  J.J. 
Marsh.  389.  The  courts  in  North  Caro- 
lina seem  still  to  hold  the  recital  of  pay- 
ment as  conclusive.  Brocket  ;•.  Foscue, 
1  Hawks,  64;  Spiers  v.  Clav,  4  Hawks, 
22;  Jones  v.  Sasser,  1  Dev."&  Batt.  452. 
And  in  Louisiana,  it  is  made  so  by  legis- 
lative enactment.  Civil  Code  of  Louisi- 
ana, Art.  2234;  Forest  v.  Shores,  11 
La.  416.  See  also  Steele  v.  Worth- 
ington,  2  Ohio,  350  [and  see  Cruise's 
Dig.  (Greenl.  2d  ed.)  tit.  32,  c.  2,  §  38, 
n. ;  c.  20,  §  52  n.  (Greenl.  2d  ed.  vol.  ii. 
pp.  322,  G07.)  But  the  recital  is  not 
even  prima  facie  evidence  of  payment 
when  the  deed  is  attacked  as  fraudulent 
by  creditors  of  the  grantor.  liolton  v. 
Jacks,  0  Robt.  (N.  Y.)  100;  Whittaker  v. 
Garuett,  3  Bush  (Ky.),  402.] 


CHAP.  IV.]  PRESUMPTIVE  EVIDENCE.  35 

§  27.  Admissions.  In  addition  to  estoppels  by  deed,  there  are 
two  classes  of  admissions  which  fall  under  this  head  of  conclu- 
sive presumptions  of  law;  namely,  solemn  admissions,  or  admis- 
sions in  judicio,  wliich  have  been  solemnly  made  in  the  course  of 
judicial  proceedings,  either  expressly,  and  as  a  substitute  for 
proof  of  the  fact,  or  tacitly,  by  pleading ;  and  unsolemn  admis- 
sions, extra  judicium,  which  have  been  acted  upon,  or  have  been 
made  to  influence  the  conduct  of  others,  or  to  derive  some  advan- 
tage to  the  party,  and  which  cannot  afterwards  be  denied  without 
a  breach  of  good  faith.  Of  the  former  class  are  all  agreements 
of  counsel,  dispensing  with  legal  proof  of  facts.^  So  if  a  material 
averment,  well  pleaded,  is  passed  over  by  the  adverse  party, 
without  denial,  whether  it  be  by  confession,  or  by  pleading  some 
other  matter,  or  by  demurring  in  law,  it  is  thereby  conclusively 
admitted.2  So  also  the  payment  of  money  into  court,  under  a 
rule  for  that  purpose,  in  satisfaction  of  so  much  of  the  claim  as 
the  party  admits  to  be  due,  is  a  conclusive  admission  of  the  char- 
acter in  which  the  plaintiff  sues,  and  of  his  claim  to  the  amount 
paid.2  The  latter  class  comprehends,  not  only  all  those  declara- 
tions, but  also  that  line  of  conduct  by  which  the  party  has  induced 
others  to  act,  or  has  acquired  any  advantage  to  himself.'^  Thus, 
a  woman  cohabited  with,  and  openly  recognized,  by  a  man,  as 
his  wife,  is  conclusively  presumed  to  be  such,  when  he  is  sued 
as  her  husband,  for  goods  furnished  to  her,  or  for  other  civil 
liabilities  growing  out  of  that  relation.^  So  where  the  sheriff 
returns  any  thing  as  fact,  done  in  the  course  of  his  duty  in  the 
service  of  a  precept,  it  is  conclusively  presumed  to  be  true  against 
him.^  And  if  one  party  refers  the  other  to  a  third  person  for 
information  concerning  a  matter  of  mutual  interest  in  controversy 
between  them,  the  answer  given  is  conclusively  taken  as  true, 
against  the  party  referring.^  This  subject  will  hereafter  be  more 
fully  considered,  under  its  appropriate  title. ^ 

1  See  infra,  §§  169,  170,  186,  20-4,  205;  *  See  infra,  §§  184,  195,  196,  207,  208. 
Kohn  V.  Marsh,  3  Rob.  (Louis.)  48.  «  Watson  v.  Threlkeld,  2  Esp.  607; 

2  Young  V.  Wright,  1  Campb.  139;  Monro  v.  De  Chemant,  4  Campb.  215; 
Wilson  V.  Turner,  1  Taunt.  308.  But  if  Eobinson  v.  Nahon,  1  Campb.  345;  post, 
a  deed   is   admitted  in  pleading,  there  §  207. 

must  still  be  proof  of  its  identity.    John-  ^  Simmons  v.  Bradford,  15  Mass.  82. 
son  V.  Cottingham,  1  Armst.  Macartn.  &         "^  Lloyd  v.  Willan,  1  Esp.  178 ;  Deles- 
Ogle,  11.  line  V.  Greenland,!  Bay,  458;  Williams 

3  Cox  V.  Parry,  1  T.  R.  464 ;  Watkins  v.  Innes,  1  Camp.  364 ;  Burt  v.  Palmer,  5 
V.  Towers,  2  T.  R.  275 ;  Griffiths  v.  Wil-  Esp.  145. 

liams,  1  T.  E.  710.     [See  infra,  §  205,  8  See  infra,  §§  169  to  212. 

vol.  ii.  §  600.] 


36 


LAW   OF   EVIDENCE. 


[PAUT  I. 


§  28.  Infants  and  Married  "Women.  Conclusive  presumptions  of 
law  are  also  made  in  respect  to  infants  and  onarried  women. 
Thus,  an  infant  under  the  age  of  seven  years  is  conclusively 
presumed  to  be  incapaljle  of  committing  any  felony,  for  want 
of  discretion ;  ^  and,  under  fourteen,  a  male  infant  is  presumed 
incapable  of  committing  a  rape.^  A  female  under  the  age  of  ten 
years  is  presumed  incapable  of  consenting  to  sexual  intercourse.^ 
Where  the  husband  and  wife  cohabited  together,  as  such,  and  no 
impotency  is  proved,  the  issue  is  conclusively  presumed  to  be 
legitimate,  though  the  wife  is  proved  to  have  been  at  ths  same 
time  guilty  of  infidelity.^  And  if  a  wife  act  in  company  with 
her  husband  in  the  commission  of  a  felony,  other  than  treason 
or  homicide,  it  is  conclusively  presumed,  that  she  acted  under 
his  coercion,  and  consequently  without  any  guilty  intent.^ 

§  29.  Survivorship.  Where  the  succession  to  estates  is  con- 
cerned, the  question,  which  of  two  persons  is  to  be  presumed  the 
survivor,  where  both  perished  in  the  same  calamity,  but  the  cir- 
cumstances of  their  deaths  are  unknown,  has  been  considered  in 
the  Roman  law,  and  in  several  other  codes ;  but  in  the  common 
law,  no  rule  on  the  subject  has  been  laid  down.  By  the  Roman 
law,  if  it  were  the  case  of  a  father  and  son,  perishing  together  in 
the  same  shipwreck  or  battle,  and  the  son  was  under  the  age  of 
puberty,  it  was  presumed  that  he  died  first,  but,  if  above  that  age, 
that  he  was  the  survivor ;  upon  the  principle,  that  in  the  former 


1  4  Bl.  Comm.  23.  [See  post,  vol. 
iii.  §  4.] 

2  1  Hal.  P.  C.  630;  1  Russell  on 
Crimes,  801;  Hex  v.  Phillips,  8  C.  & 
P.  736 ;  Rex  v.  Jordan,  9  C.  &  P.  118. 
But  see  post,  vol.  iii.  §§  4,  215]. 

3  1  Russell  on  Crimes,  810. 

4  Cope  V.  Cope,  1  Mood.  &  Rob.  269, 
270;  Morris  v.  Davies,  3  C.  &  P.  215;  St. 
George  v.  St.  Margaret,  1  vSalk.  123; 
Banbury  Peerage  ease,  2  Selw.  N.  P. 
(1)V  Wlieaton),  558;  s.  c.  1  Sim.  and  Stu. 
1 .53 ;  Rex  v.  Lufte,  8  East,  193.  [Sullivan 
V.  Kelley,  3  Allen  (Mass.),  148.  See  also 
post,  vol.  ii.  §  150  and  n.]  But  if  they  lived 
apart,  though  within  sueh  distance  as 
aff'jrded  an  opportunity  for  intercourse, 
the  j)resumption  of  legitimacy  of  the 
issue  may  be  rebutted.  Morris  v.  Davis, 
6  C  &  Fin.  103.  Non-access  is  not  pre- 
sume<l  from  the  fact,  that  the  wife  lived 
in  adultery  with  another;  it  must  be 
proved  nlinncU'..  Regina  v.  Mansfield,  1 
G.  &  Dav.  7.     Post,  §  81. 


5  4  Bl.  Comm.  28,  29;  Anon.,  2  East, 
P.  C.  559.  [The  better  opinion  now 
seems  to  be,  that  between  the  ages  of 
seven  and  fourteen  it  is  a  question  for 
a  jury  on  the  evidence,  whether  an  in- 
fiiut  has  a  guilty  knowledge  that  he 
is  doing  wrong,  whether  he  is  on  trial 
for  a  felonv  or  a  misdemeanor.  Russ. 
C.  &  M.  1-5 ;  Rex  v.  Owen,  4  C.  &  P. 
236.  But  in  cases  not  necessarily  in- 
volving guilty  knowledge,  as  under  an 
indictment  for  non-repair  of  a  road,  such 
a  question  does  not  arise,  and  there  is 
no  i)rcsumption  jirimn  facie  or  otherwise 
that  he  is  not  guilty.  Rex  v.  Sutton,  3 
A.  &  E.  517.  So  in  the  case  of  married 
women,  the  presumption  of  coercion  is 
only  jrrlnin  fnrio  subject  to  be  controlled 
by  evidence  tliat  tlie  wife  intervened 
voluntarily  and  not  by  compulsion.  Rex 
V.  Hughes,  2  Lewin.'C.  C.  229;  Rex  i'. 
Pollard,  8  C.  &  P.  553;  Reg.r.  Stapleton, 
1  Jebb,  C.  C.  93.  See  also  post,  vol.  iii. 
§§  4,  7.] 


CHAP.  IV.]  PRESUMPTIVE  EVIDENCE.  37 

case  the  elder  is  generally  the  more  robust,  and,  in  the  latter,  the 
younger.i  xiie  French  code  has  regard  to  the  ages  of  fifteen 
and  sixty;  presuming  that  of  those  under  the  former  age  the 
eldest  survived;  and  that  of  those  above  the  latter  age  the 
youngest  survived.  If  the  parties  were  between  those  ages, 
but  of  different  sexes,  the  male  is  presumed  to  have  survived ; 
if  they  were  of  the  same  sex,  the  presumption  is  in  favor  of  the 
survivorsliip  of  the  younger,  as  opening  the  succession  in  the 
order  of  nature.^  The  same  rules  were  in  force  in  the  territory 
of  Orleans  at  the  time  of  its  cession  to  the  United  States,  and 
have  since  been  incorporated  into  the  code  of  Louisiana." 

§  30.  Survivorship.  This  question  first  arose,  in  common-law 
courts,  upon  a  motion  for  a  ^nandamus,  in  the  case  of  General 
Stanwix,  who  perished,  together  with  his  second  wife,  and  his 
daughter  by  a  former  marriage,  on  the  passage  from  Dublin  to 
England;  the  vessel  in  which  they  sailed  having  never  been 
heard  from.  Hereupon  liis  nephew  applied  for  letters  of  admin- 
istration, as  next  of  kin;  which  was  resisted  by  the  maternal 
uncle  of  the  daughter,  who  claimed  the  effects  upon  the  pre- 
sumption of  the  Roman  law,  that  she  was  the  survivor.  But 
this  point  was  not  decided,  the  court  decreeing  for  the  nephcAV 
upon  another  ground ;  namely,  that  the  question  could  properly 
be  raised  only  upon  the  statute  of  distributions,, and  not  upon 
an  application  for  administration  by  one  clearly  entitled  to  ad- 
minister by  consanguinity.*  The  point  was  afterwards  raised  in 
chancery,  where  the  case  was,  that  the  father  had  bequeathed 
legacies  to  such  of  his  children  as  should  be  living  at  the  time 
of  his  death ;  and  he  having  perished,  together  with  one  of  the 
legatees,  by  the  foundering  of  a  vessel  on  a  voyage  from  India 

1  Dig.  lib.  34,  tit.  5;  De  rebus  dubiis,  misfortune."  See  Baillie's  Moohummu- 
1.  9,  §§  1,  3;  lb.  1.  16,  22,  2-3;  Menocliius  dan  Law  of  Inheritance,  172.  Such  ali-o 
de  Prsesumpt.  lib.  1,  Qusest.  x.  n.  8,  9.  was  the  rule  of  the  ancient  Danish  law. 
Tills  rule,  however,  was  subject  to  some  "  Filius  in  coraraunione  cum  patre  et 
exceptions  for  the  benefit  of  mothers,  matre  denatus,  pro  non  nato  habetur." 
patrons,  and  beneficiaries.  Ancher,  Lex  Cimbrica,  lib.  1,  c.  9,  p.  21. 

2  Code  Civil,  §§  720,721,  722;  Duran-  3  Civil  Code  of  Louisiana,  art.  930- 
ton,  Cours  de  Droit  Fran(;ais,  torn.  vi.  pp.  933;  Digest  of  the  Civil  Laws  of  the 
39,  42,  43,  48,  67,  69 ;  Rogron,  Code  Civil  Territory  of  Orleans,  art.  60-63. 
Expli.  411,  412;  Toullier,  Droit  Civil  4  Rex  i;.  Dr.  Hay,  1  W.  Bl.  640.  The 
Pran9ais,  torn.  iv.  pp.  70,  72,  73.  By  the  matter  was  afterwards  compromised, 
Mahometan  law  of  India,  when  relatives  upon  the  recommendation  of  Lord  Mans- 
thus  perish  together,  "  it  is  to  be  pre-  field,  who  said  he  knew  of  no  legal  prin- 
sumed  that  they  all  died  at  the  same  ciple  on  which  he  could  decide  it.  Sea 
moment,  and  the  property  of  each  shall  2  Phillim.  268,  in  n. ;  Fearne's  Posth. 
pass  to  his  living  heirs,  without  any  per-  Works,  38. 

tion  of  it  vesting  in  his  companions  ia 


38 


LAW   OF  EVIDEKCE. 


[PAET  I. 


to  England,  the  question  was,  whether  the  legacy  was  lapsed  by 
the  death  of  the  son  in  the  lifetime  of  the  father.  The  Mastei 
of  the  Rolls  refused  to  decide  the  question  by  presumption,  and 
directed  an  issue,  to  try  the  fact  by  a  jury.i  But  the  Preroga- 
tive Court  adopt  the  presumption,  that  both  perished  together, 
and  that  therefore  neither  could  transmit  rights  to  the  other.^ 
In  the  absence  of  all  evidence  of  the  particular  circumstances  of 
the  calamity,  probably  this  rule  will  be  found  the  safest  and  most 
convenient ;  ^  but  if  any  circumstances  of  the  death  of  either  party 
can  be  proved,  there  can  be  no  inconvenience  in  submitting  the 
question  to  a  jury,  to  whose  province  it  pecuharly  belongs. 

§  31.  Presumptions  to  the  law  of  nations.  Conclusive  presump- 
tions of  law  are  not  unknown  to  the  laiv  of  nations.  Thus,  if  a 
neutral  vessel  be  found  carrying  despatches  of  the  enemy  between 
different  parts  of  the  enemy's  dominions,  their  effect  is  presumed  to 
be  hostile.*  The  spoliation  of  papers,  by  the  captured  party,  has  been 
regarded,  in  all  the  States  of  Continental  Europe,  as  conclusive 
proof  of  guilt ;  but,  in  England  and  America,  it  is  open  to  explana- 
tion, unless  the  cause  labors  under  heavy  suspicions,  or  there  is 
a  vehement  presumption  of  bad  faith  or  gross  prevarication.^ 

§  32.  Based  on  expediency.  In  these  cases  of  conclusive  pre- 
sumption, the  rule  of  law  merely  attaches  itself  to  the  circumstances, 
when  proved ;  it  is  not  deduced  from  them.     It  is  not  a  rule  of  in- 


1  Mason  v.  Mason,  1  Meriv.  308. 

2  Wright  V.  Netlierwood,  2  Salk.  593, 
n.  (a)  by  Evans;  more  fully  reported 
under  the  name  of  Wright  v.  Sannuda, 
2  Pliillim.  2G6-277,  n.  (c) ;  Taylor  i;.  Dip- 
lock,  2  Phillim.  261,  278,  280 ;  Selwyn's 
case,  3  Hagg.  Eccl.  748.  In  the  goods 
of  Murray,  1  Curt.  596;  Satterthwaite  v. 
Powell,  1  Curt.  705.  See  also  2  Kent's 
Coinm.  435,  436  (4th  ed.),  n.  (b).  In 
the  brief  note  of  Colvin  v.  II.  M.  Proc- 
urator-Gen., 1  Hagg.  Eccl.  92,  wliere  the 
husband,  wife,  and  infant  child  (if  any) 
perished  together,  the  court  seem  to 
have  lield,  that  the  prima  facie  presump- 
tion of  law  was  that  the  husband  sur- 
vived. But  the  point  was  not  much 
moved.  It  was  also  raised,  but  not  dis- 
posed of,  in  Mcehring  v.  Mitchell,  1  Barb. 
Ch.  264.  The  subject  of  presumed  sur- 
vivorship is  fully  treated  by  Mr.  Burge, 
in  his  Commentaries  on  Colonial  and 
Foreign  Laws,  vol.  iv.  pp.  11-29.  In 
Chancery  it  has  recently  been  held,  that 
a  presumption  of  priority  of  death  miglit 
be  raised  from  the  comparative  age, 
health,  and  strength  of  the  parties ;  and, 


therefore,  where  two  brothers  perished 
by  shipwreck,  the  circumstances  being 
wholly  unknown,  the  elder  being  the 
master  and  the  yoimger  the  second  mate 
of  the  ship,  it  was  presumed  that  tlie 
latter  died  first.     Sillick  v.  Booth,  1  Y. 

6  C.  New  Cas.  117.  [In  Underwood  v. 
Wing,  31  Eng.  Law  &  Eq.  293,  where  a 
husband,  wife,  and  children  were  swept 
from  tlie  deck  of  a  vessel  by  the  same 
wave,  and  went  down  together,  it  was 
held  that,  in  the  absence  of  evidence,  the 
court  would  not  presume  that  the  hus- 
band survived  the  wife.  s.  c.  affirmed, 
4  De  Gex,  M.  &  G.  1.  Courts  of  probate, 
equity,  and  law  alike  refuse  to  presume 
simultaneous  death  or  survivorship  in 
the  absence  of  evidence.  Wing  v.  An- 
grave,  8  H.  of  L.  183;  Smith  v.  Crown, 

7  Fla.  81.] 

8  It  was  so  held  in  Coye  v.  Leach,  8 
Mete.  371.  And  see  Mcehring  v.  Mitchell, 
1  Barb.  Ch.  264. 

4  The  Atalanta,  6  Pob.  Adm.  440. 

6  The  Pizarro,  2  Wheat.  227,  241,  242, 
n.  (e) ;  The  Hunter,  1  Dods.  Adm.  480, 
486. 


CHAP.  I\'.]  PRESU:\rPTIYE   EVIDENCE.  89 

ference  from  testimony ;  but  a  rule  of  protection,  as  expedient, 
and  for  the  general  good.  It  does  not,  for  example,  assume  that  all 
landlords  have  good  titles  ;  but  that  it  will  be  a  public  and  general 
inconvenience  to  suffer  tenants  to  dispute  them.  Neither  does  it 
assume,  that  all  averments  and  recitals  in  deeds  and  records  are 
true ;  but  that  it  will  be  mischievous,  if  parties  are  permitted  to  deny 
them.  It  does  not  assume  that  all  simple  contract  debts,  of  six 
years'  standing,  are  paid,  nor  that  every  man,  quietly  occupying 
land  twenty  years  as  his  own,  has  a  valid  title  by  grant ;  but  it 
deems  it  expedient  that  claims,  opposed  by  such  evidence  as  the 
lapse  of  those  periods  affords,  should  not  be  countenanced,  and 
that  society  is  more  benefited  by  a  refusal  to  entertain  such 
claims,  than  by  suffering  them  to  be  made  good  by  proof.  In 
fine,  it  does  not  assume  the  impossibility  of  things  which  are 
possible  ;  on  the  contrary,  it  is  founded,  not  only  on  the  possibil- 
ity of  their  existence,  but  on  their  occasional  occurrence  ;  and  it 
is  against  the  mischiefs  of  their  occurrence  that  it  interposes  its 
protecting  prohibition.^ 

§  33.  Disputable  presumptions.  The  SECOND  CLASS  of  presump- 
tions of  law,  answering  to  the  prcesumptiones  juris  of  the  Roman 
law,  which  may  always  be  overcome  by  opposing  proof,^  consists  of 
those  termed  disputable  presumptions.^  These,  as  well  as  the  for- 
mer, are  the  result  of  the  general  experience  of  a  connection  be- 
tween certain  facts,  or  things,  the  one  being  usually  found  to  be  the 
companion  or  the  effect  of  the  other.  The  connection,  however, 
in  this  class,  is  not  so  intimate,  nor  so  nearly  universal,  as  to  render 
it  expedient  that  it  should  be  absolutely  and  imperatively  pre- 
sumed to  exist  in  every  case,  all  evidence  to  the  contrary  being  re- 
jected ;  but  yet  it  is  so  general,  and  so  nearly  universal,  that  the 
law  itself,  without  the  aid  of  a  jury,  infers  the  one  fact  from 
the  proved  existence  of  the  other,  in  the  absence  of  all  opposing 
e\ddence.  In  this  mode,  the  law  defines  the  nature  and  amount 
of  the  evidence  which  it  deems  sufficient  to  establish  a  p)rima 

1  See  6  Law  Mag.  348,  355,  356.  direct  evidence  of  the  other,  but,  the  one 

2  Heinnec.  ad  Pand.  pars  iv.  §  124.  fact  existing  and  being  proved,  the  law 
8  [Presumptions  are  of  two  kinds,  —     raises    an  artificial  presumption  of  the 

natural,  and  legal    or    artificial.      The  existence  of  the  other.   Ewing,  J.,  Gulick 

natural  presumption  is,  when  a  fact  is  v.  Loden,  1  Green  (N.  J.),  68.     When  tes- 

proved  wherefrora,  by  reason  of  the  con-  timony  is   equally  consistent  with  two 

nection,  founded  on  experience,  the  exist-  things,  it  proves  neither.     Bramwcll,  B., 

ence  of  another  fact  is  directly  inferred,  in  Ellis  v.  Great  West.  R.  R.  C«.  ,  9  L.  R. 

The  legal  or  artificial  presumption  is,  C.  P.  551.] 
when  the  existence  of  one  fact  is  not 


40  LAW   or  EVIDENCE.  [PAET  I. 

facie  case,  and  to  throw  the  burden  of  proof  on  the  other  party ; 
and,  if  no  opposing  evidence  is  offered,  the  jury  are  bound  to 
find  in  favor  of  the  presumption.  A  contrary  verdict  would 
be  liable  to  be  set  aside,  as  being  against  evidence.^ 

§  34.  Based  on  expediency.  The  rules  in  this  class  of  presump- 
tions, as  in  the  former,  have  been  adopted  by  common  consent,  from 
motives  of  public  policy,  and  for  the  promotion  of  the  general  good ; 
yet  not,  as  in  the  former  class,  forbidding  all  further  evidence ;  but 
only  excusing  or  dispensing  with  it,  till  some  proof  is  given  on  the 
other  side  to  rebut  the  presumption  thus  raised.  Thus,  as  men 
do  not  generally  violate  the  penal  code,  the  law  presumes  every 
man  innocent ;  but  some  men  do  transgress  it,  and  therefore 
evidence  is  received  to  repel  this  presumption.  This  legal  pre- 
sumption of  innocence  is  to  be  regarded  by  the  jury,  in  every 
case,  as  matter  of  evidence,  to  the  benefit  of  which  the  party  is 
entitled.^  And  where  a  criminal  charge  is  to  be  proved  by  cir- 
cumstantial evidence,  the  proof  ought  to  be  not  only  consistent 
with  the  prisoner's  guilt,  but  inconsistent  with  any  other  rational 
conclusion.^  On  the  other  hand,  as  men  seldom  do  unlawful  acts 
with  innocent  intentions,  the  law  presumes  every  act,  in  itself 
unlawful,  to  have  been  criminally  intended,^  until  the  contrary 
appears.  Thus,  on  a  charge  of  murder,  malice  is  presumed  from 
the  fact  of  killing,  unaccompanied  with  circumstances  of  extenua- 
tion ;  and  the  burden  of  disproving  the  malice  is  thrown  upon 
the  accused.^     The  same   presumption   arises   in   civil   actions, 

1  [Prima  facie  evidence  is  such  as  is  ^  Foster's   Crown  Law,  255;  Rex  v. 

sufficient  to  establish  tlie  fact,  and,  if  Farrington,  Russ.  &  Ry.  207.    This  point 

not  rebutted,  becomes  so  conclusive  as  was    re-examined    and    discussed,   with 

to  require  a  verdict  in  accordance  there-  great   ability   and    research,   in    York's 

with.     Crane  v.  Morris,  6  Pet.   (U.  S.)  case,  9  Mete.  93,  in  which  a  majority  of 

698.    "  Stabit  presumptio  donee  probetur  the  learned  judges  affirmed  the  rule  as 

in   contrarium."      Com.    v.   Ilogan,    114  stated  in  the  text.     Wilde,  J.,  however, 

Mass.  4;    United    States  v.  Wiggins,  14  strongly    dissented;    maintaining,    with 

Pet.  (U.  S.)  334.1  great  force  of  reason,  that  the  rule  was 

■•^  [State  I".  Pike,  49  N.  H.  398..]  founded  in  a  state  of  society  no  longer 

3  Hodge's  case,  2  Lewin,  Cr.  Cas.  227,  existing;  that  it  was  inconsistent  with 

p- Alderson,  B.     [See  also  ante,  ^  13  a,  settled  principles  of  criminal  law;  and 

iu\d  j'ost,  vol.  iii.  §  29.]  that  it  was  not  supported  by  tlie  weight 

*  [Taylor     (Ev.    §    103)     substitutes  of  authority.     He   was  of   opinion  that 

"wrongfully"  instead  of    "criminally"  the   following    conclusions    were    main- 

with  great  propriety,  as  every  unlawful  tained  on  sound  principles  of  law  and 

act  is  by  no  means  criminal.    Where  the  manifest  justice:  1.  That  when  the  facts 

act  itself  is  of  an  indifferent  nature,  then  and  circumstances  accompanying  a  hom- 

the  intent  must  be  proved.     But  where  icide  are  given  in  evidence,  the  question 

it  is  in  itself  unlawful,  the  intent  is  pre-  whether   the   crime  is  murder  or  man- 

eunied.  Rex  ly.  Woodfall,  5  Burr.  2()G7,  the  slaughter  is  to  be  decided  upon  tlie  evi- 

act  bi'ing  of  such  a  nature  as  to  show  the  deuce,  and  not  upon   any   jiresumption 

intent.     Rex  v.  Harvey,  2  B.  &  C.  257.]  from  the  mere  act  of  killing.    2.  That, 


CHAP.  TV.^ 


PRESUIMPTIVE  EVIDENCE. 


41 


wliere  the  act  complainecl  of  was  unlawful.^  So,  also,  as  menA 
generally  own  the  personal  property  they  possess,  proof  of  pos-  ■ 
session  is  presumptive  proof  of  otvnership.^    But  possession  oi^ 


if  there  be  any  such  presumption,  it  is 
a  presumption  of  fact;  and  if  tiie  evi- 
dence leads  to  a  reasonable  doubt  whether 
the  presumption  be  well  founded,  tiiat 
doubt  will  avail  in  favor  of  the  prisoner. 
3.  That  the  burden  of  proof,  in  every 
criminal  case,  is  on  the  government,  to 
prove  all  the  material  allegations  iia  the 
indictment ;  and  if,  on  the  whole  evi- 
dence, the  ju:\v  have  a  reasonable  doubt 
whether  the  defendant  is  guilty  of  the 
crime  charged,  they  are  bound  to  acquit 
him.  (In  Connnonwealth  r.  Hawkins,  3 
Gray,  465,  Chief  Justice  Shaw  said,  that 
the  doctrine  of  York's  case  is  that,  where 
the  Idlling  is  proved  to  have  been  com- 
mitted by  the  defendant,  and  not/iing  fur- 
ther is  shown,  the  presumption  of  law  is 
that  it  was  malicious,  and  an  act  of  mur- 
der; and  that  it  was  inapplicable  to  a 
case  where  the  circumstances  attending 
the  homicide  were  fully  shown  by  the 
evidence;  that,  in  such  a  case,  the  homi- 
cide being  conceded,  and  no  excuse  or 
justification  being  shown,  it  was  either 
murder  or  manslaughter;  and  that  the 
jury,  upon  all  the  circumstances,  must 
be  satisfied  beyond  a  reasonable  doubt 
that  it  was  done  with  malice  before  they 
could  find  the  defendant  guilty  of  mur- 
der. This  would  appear  to  qualify  ma- 
terially the  rule  in  York's  case  as  it  has 
heretofore  been  understood.  See  also 
State  V.  McDonnell,  32  Vt,  491 ;  ante,  § 
18,  and  infra,  §§  81  b,  81  c. 

1  In  Bromage  v.  Proser,  4  B.  &  C.  247, 
255,  256,  which  was  an  action  for  words 
spoken  of  the  plaintiffs,  in  their  business 
and  trade  of  bankers,  the  law  of  implied 
or  legal  malice,  as  distinguished  from 
malice  in  fact,  was  clearly  expounded 
by  Mr.  Justice  B.ayley,  in  the  following 
terms :  "  Malice,  in  the  common  accep- 
tation, means  ill-will  against  a  person, 
but  in  its  legal  sense,  it  means  a  wrong- 
ful act,  done  intentionally  without  just 
cause  or  excuse.  If  I  give  a  perfect 
stranger  a  blow  likely  to  produce  death, 
I  do  it  of  malice,  because  I  do  it  inten- 
tionally and  without  just  cause  or  ex- 
cuse. If  I  maim  cattle,  without  knowing 
whose  they  are,  if  I  poison  a  fishery, 
without  knowing  the  owner,  I  do  it  of 
malice,  because  it  is  a  wrongful  act,  and 
done  intentionally.  If  I  am  arraigned 
of  felony,  and  wilfully  stand  mute,  I  am 
said  to  do  it  of  malice,  because  it  is  in- 
tentional, and  without  just  cause  or  ex- 
cuse. Eussell  on  Crimes,  614,  n.  1.  And 
if  I  traduce  a  man,  whether  I  know  him 


or  not,  and  whether  I  intend  to  do  him 
an  injurj-  or  not,  I  apprehend  the  law 
considers  it  as  done  of  malice,  because 
it  is  wrongful  and  intentional.  It  equally 
works  an  injury,  whether  I  meant  to  jpro- 
duce  an  injur}'  or  not,  and  if  I  had  no 
legal  excuse  for  the  slander,  why  is  he 
not  to  have  a  remedy  against  me  for  the 
injury  it  produces  1  And  I  apprehend 
the  law  recognizes  the  distinction  be- 
tween these  two  descriptions  of  malice, 
malice  in  fact  and  malice  in  law,  in  ac- 
tions of  slander.  In  an  ordinar}'  action 
for  words,  it  is  sufficient  to  charge  that 
the  defendant  spoke  them  falsely  ;  it  is 
not  necessary  to  state  that  they  were 
spoken  malicioush^  This  is  so  laid  down 
in  Styles,  3ii2,  and  was  adjudged  upon 
error  in  Mercer  v.  Sparks,  Owen,  51 ; 
Noy,  35.  The  objection  there  was,  that 
the  words  were  not  charged  to  have  been 
spoken  maliciously,  but  the  court  an- 
swered that  the  words  were  themselves 
malicious  and  slanderous,  and  therefore 
the  judgment  was  affirmed.  But  in  ac- 
tions for  such  slander,  as  is  prima  facie 
excusable  on  account  of  the  cause  of 
speaking  or  writing  it,  as  in  the  case  of 
servants'  characters,  confidential  advice, 
or  communication  to  persons  who  ask  it, 
or  have  a  right  to  expect  it,  malice  in 
fact  must  be  proved  by  the  plaintiff;  and 
in  Edmondson  v.  Stevenson,  Bull.  N.  P. 
8,  Lord  JNlansfield  takes  the  distinction 
between  these  and  ordinary  actions  of 
slander." 

[In  Commonwealth  v.  "Walden,  3 
Cush.  559,  561,  which  was  an  indictment 
under  a  statute  for  malicious  mischief  in 
wilfully  and  maliciousli/  injuring  a  cer- 
tain animal,  by  shooting,  the  court  below 
ruled  that  "maliciously"  meant  "the 
wilfully  doing  of  any  act  prohibited  by 
law,  and  for  which  the  defendant  had  no 
lawful  excuse."  The  Supreme  Court 
held  the  instructions  erroneous,  and  de- 
cided that  to  make  the  act  "  maliciously  " 
done,  the  jury  must  be  satisfied  that  it 
was  done  either  out  of  a  spirit  of  wanton 
cruelty  or  wicked  revenge.  See  4  Bl. 
Comm.  244 ;  Jacob's  Law  Die.  by  Tom- 
lin,  tit.  "  Mischief,  Malicious."] 

2  [Armory  v.  Delamirie,  1  Stra.  505; 
Magee  v.  Scott,  9  Cush.  150 ;  Fish  v.  Skut, 
21  karb.  333;  MUay  v.  Butts,  35  Maine, 
139;  Linscott  i'.  Trask,  lb.  150;  Vining 
V.  Baker,  63  Maine,  923.  So  as  to  real 
property.  Metters  v.  Brown,  1  H.  &  C. 
686.1 


42  LAW  OF  EVIDENCE.  [PART  I. 

the  fruits  of  crime  recently  after  its  commission,  is  prima  facie 
evidence  of  guilty  possession  ;  and,  if  unexplained  either  by  direct 
evidence,  or  by  the  attending  circumstances,  or  by  the  character 
and  habits  of  life  of  the  possessor,  or  otherwise,  it  is  taken  as 
conclusive. 1  This  rule  of  presumption  is  not  confined  to  the  case 
of  theft,  but  is  applied  to  all  cases  of  crime,  even  the  highest  and 
most  penal.  Thus,  upon  an  indictment  for  arson,  proof  that 
property  which  was  in  the  house  at  the  time  it  was  burnt,  was 
soon  afterwards  found  in  the  possession  of  the  prisoner,  was  held 
to  raise  a  probable  presumption  that  he  was  present,  and  con- 
cerned in  the  offence.^  The  like  presumption  is  raised  in  the 
case  of  murder,  accompanied  by  robbery ;  ^  and  in  the  case  of  the 
possession  of  an  unusual  quantity  of  counterfeit  money.* 

§  35.  Innocence.  Tliis  presmnption  of  innocence  is  so  strong, 
that  even  where  the  guilt  can  be  established  only  by  proving  a 
negative,  that  negative  must,  in  most  cases,  be  proved  by  the 
party  alleging  the  guilt ;  though  the  general  rule  of  law  devolves 
the  burden  of  proof  on  the  party  holding  the  affirmative.  Thus, 
•where  the  plaintiff  complained  that  the  defendants,  who  had 
chartered  his  ship,  had  put  on  board  an  article  highly  inflam- 
mable and  dangerous,  without  giving  notice  of  its  nature  to  the 
master,  or  others  in  charge  of  the  sliip,  whereby  the  vessel  was 
burnt ;  he  was  held  bound  to  prove  this  negative  averment.^  In 
some   cases,   the  presumption   of   innocence   has  been  deemed 

1  Rex  V. ,  2  C.  &  p.  859 ;  Regina  railway  station  to  the  easy  access  of  the 

v.  Coote,  1  Armst.  Macartn.  &  Ogle,  337  ;  public,  but  which  were  more  easily  ac- 

The  State  v.  Adams,  1  Hayw.  463 ;  Wills  cessible  to  the  servants  of  the  railway 

on  Circumstantial  Evidence,  67.     Where  company,  were  stolen  by  the  servants, 

the  things  stolen  are  such  as  do  not  pass  McQueen  v.  Great  West.  R.  R.  Co.,  L. 

from  hand  to  hand  (e.  7.  the  ends  of  un-  R.  10,  Q  B.  569.] 

finislic'd    woollen    clothes),   their    being  2  Rickman's  case,  2  East,  P.  C.  1035. 

found  in  the  prisoner's  possession,  two  ^  WiHg  on  Circumst.  Evid.  72. 

months  after  they  were  stolen,  is  suffi-  *  Rex  v.  Fuller  et  al.,  Russ.  &  Ry.  308. 
cient  to  call  for  an  explanation  from  him  8  Williams  v.  E.  Ind.  Co.,  3  East,  102 ; 

how  lie  came  by  them,  and  to  be  con-  Bull.  N.  P.  298.     So,  of  allegations  tliat 

sidered  by  the  jury.     Rex  v.  Partridge,  a  party  had  not  taken  the  sacrament, 

7C.  &P.  551.    "FurtumprtBSumitur  com-  Rex  u.  Hawkins,  10  East  211;  had  not 

missum  ab  illn,  penes  quern  res  furata  in-  complied  with  the  act  of  uniformity,  &c., 

venta  fuorit,  adeo  ut  si  non  docuerit  a  quo  Powell  v.  Millburn,  3  Wills.  355,   360; 

rem  habuerit,  juste,  ex  ilia  inventione,  that   goods  were   not  legally  imported, 

poterit    subjici    tormentis."      Mascard.  Sissons  ?>.  Di.xon,  5  B.  &  C.  758;  that  a 

De  Probat.  vol.  ii.,  Concl.  834  ;  Menoch.  tlieatre  was  not  duly  licensed,  Rod  well 

De  Prajsumpt.  liv.  5,  Pricsumpt.  31.    [See  v.  Rcdge,  1  C.  &  P.  220.     [On  an  indict- 

post,  vol.  iii,  §§  31,  32,  33.     And  see  also  ment  for  seduction,  the  government  must 

State  V.  Ilodge,  50  N.  H.  510;  that  it  is  a  prove  the  previous  chastity  of   the  fe- 

question  of  fact  for  tlie  jury,  what  kind  male,  as  to  presume  the  contrary  is  in- 

and  how  recent  a  possession  gives  rise  to  consistent  with  the  presumption  of  the 

the  presumi)tion  of  theft.     But  there  is  prisoner's   innocence.     West  v.  State,  1 

no  presumption  that  goods  exposed  in  a  Wis.  209. [ 


CHAP.  IV.]  PEESUJIPTIVE  EVIDENCE.  43 

sufficiently  strong  to  overtlirow  the  presumption  of  life.  Thus, 
where  a  woman,  twelve  months  after  her  husband  was  last  heard 
of,  married  a  second  husband,  by  whom  she  had  children ;  it  was 
held,  that  the  Sessions,  in  a  question  upon  their  settlement, 
rightly  presumed  that  the  first  husband  was  dead  at  the  time  of 
the  second  marriage.^ 

§  36.  Innocence.  An  exception  to  this  rule,  respecting  the  pre- 
sumption of  innocence,  is  admitted  in  the  case  of  a  libel.  For 
where  a  libel  is  sold  in  a  bookseller's  shop,  by  his  servant,  in  the 
ordinary  course  of  his  employment,  this  is  evidence  of  a  guilty 
publication  by  the  master  ;  though,  in  general,  an  authority  to 
commit  a  breach  of  the  law  is  not  to  be  presumed.  This  excep- 
tion is  founded  upon  public  policy,  lest  irresponsible  persons 
should  be  put  forward,  and  the  principal  and  real  offender  should 
escape.  Whether  such  evidence  is  conclusive  against  the  master, 
or  not,  the  books  are  not  perfectly  agreed ;  but  it  seems  conceded, 
that  the  want  of  privity  in  fact  by  the  master  is  not  sufficient  to 
excuse  him  ;  and  that  the  presumption  of  his  guilt  is  so  strong 
as  to  fall  but  little  short  of  conclusive  evidence.^  Proof  that  the 
libel  was  sold  in  violation  of  express  orders  from  the  master  would 
clearly  take  the  case  out  of  tliis  exception,  by  showing  that  it 
was  not  sold  in  the  ordinary  course  of  the.  servant's  duty.  The 
same  law  is  applied  to  the  publishers  of  newspapers.^ 

§  37.  Innocence.  The  presumption  of  innocence  may  be  over- 
thrown, and  a  presumption  of  guilt  be  raised  by  the  misconduct  of 
the  party,  in  suppressing  or  destroying  evidence  which  he  ought 

}  Eex  V.  Twyning,  2  B.  &  Aid.  385.  ing  at  the  time  of  the  second  marriage. 

[Quin  V.  State,  46  Ind.  459.     And  where  Eex  v.  Harborne,  2  Ad.  &  El.  540.     [See 

the  presumption  of  innocence  conflicts  also  post,  §  80.] 

with  the  presumption  of  the  continuance  ^  j^gx  v.  Gutch,  1  INI.  &  M.  433 ;  Hard- 

of  life,  the  latter  must  be  proved.    Lock-  ing   v.  Greening,  8   Taunt.  42;    Eex   v. 

hart  V.  White,  18  Texas,  102 ;   Sharp  v.  Almon,  5  Burr.  2686 ;  Eex  v.  Walter,  3 

Johnson,  22  Ark.  75;  Klein  v.  Landman,  Esp.  21;  1  Euss.  on  Crimes,  341  (3d  ed. 

29  Mo.  259.   Legitimacy  is  to  be  presumed  p.  251 ) ;  Ph.  &  Am.  on  Evid.  466 ;  1  Phil, 

till  the  contrary  is  shown.     Dinkins  v.  Evid.  446.     [This  is  rather  a  presump- 

Samuel,  10  Eich.  (S.  C.)  06;   Strode  v.  tion  of    authority  conferred    upon   the 

McGowan,  2  Bush  (Ky.),  621;  Harrison  agent  to  do  the  act,  than  an  exception 

V.  South,  21  P3ng.  L.  &  Eq.  343 ;  Ward  v.  to    the    rule    of    presumed    innocence. 

Dulaney,  23  Miss.  410.]     But  in  another  Cooper  v.  Slade,  6  H.  of  L.  786 ;  Eex  v. 

case,  where,  in  a  question  upon  the  de-  Dixon,  3  M.  &  S.  11;    Eex  v.  Medley,  6 

rivative  settlement  of  the  second  wife,  it  C.  &  P.  292.     As  to  presumptions  from 

was  proved  that  a  letter  had  been  writ-  alterations  of  negotiable  paper,  see  post, 

ten  from  the  first  wife  from  Van  Die-  §  564,  n.] 

man's  Land,  bearing  date  only  twenty-  3  \  Russ.  on  Crimes,  341 ;  Eex  v.  Nutt, 

five  days  prior  to  the  second  marriage,  Bull.  N.  P.  6  (3d  ed.  p.  251);  Southwick 

it  was  held,  that  the  Sessions  did  right  v.  Stevens,  10  Johns.  443. 
in  presuming  that  the  first  wife  was  liv- 


44 


LAAV   OF  EVIDEXCE. 


[PAE,T  I, 


to  produce,  or  to  which  the  other  party  is  entitled.  Thus,  the 
spoliation  of  i)apers,  material  to  show  the  neutral  character  of  a 
vessel,  furnishes  a  strong  presumption,  in  odium  spoUatoris,  against 
the  ship's  neutrality .^  A  similar  presumption  is  raised  against  a 
party  who  has  obtained  possession  of  papers  from  a  witness,  after 
the  service  of  subpoena  duces  tecum  upon  the  latter  for  their  pro- 
duction, which  is  withheld.^  The  general  rule  is,  omnia  prce- 
sumuntia'  contra  spoliatorem.^  His  conduct  is  attributed  to  his 
supposed  knowledge  that  the  truth  would  have  operated  against 
him.  Thus,  if  some  of  a  series  of  documents  of  title  are  sup- 
X)ressed  by  the  party  admitting  them  to  be  in  his  possession,  tliis 
is  evidence  that  the  documents  withheld  afford  inferences  unfavor- 
able to  the  title  of  that  party .^  Thus,  also,  where  the  finder  of 
a  lost  jewel  would  not  produce  it,  it  was  presumed  against  him 
that  it  was  of  the  highest  value  of  its  kind.^  But  if  the  defendant 
has  been  guilty  of  no  fraud,  or  improper  conduct,  and  the  only 
evidence  against  him  is  of  the  delivery  to  him  of  the  j)laintiff's 
goods,  of  unknown  quality,  the  presumption  is  that  they  were 
goods  of  the  cheapest  quality.^     The  fabrication  of  evidence,  how- 


1  The  Hunter,  1  Dods.  480 ;  The  Pi- 
zarro,  2  Wheat.  227 ;  1  Kent,  Comni.  157  ; 
supra,  §  31  [Blade  v.  Noland,  12  Wend. 
173.  When  a  party  voluntarily  destroys 
written  evidence,  he  must  show  that  it 
was  innocently  done  before  he  can  be 
allowed  to  give  secondary  evidence  of 
the  contents  of  the  writings  destroyed. 
Joannes  v.  Bennett,  5  Allen  (Mass.),  169; 
Tilton  V.  Beecher,  Sup.  Ct.  (N.  Y.),  1875; 
Bavley  y.  M'Mickie,  9  Cal.430;  Tobin  v. 
Shaw,  45  Maine,  331.     Post,  §  84,  n.] 

2  Leeds  i\  Cook,  4  Esp.  256 ;  Rector  v. 
Rector,  3  Gilm.  105.  [So,  if  he  withholds 
papers  which  would  explain  doubts,  the 
doubts  must  be  to  his  prejudice.  At- 
torney-Gen. V.  Windsor,  24  Beav.  G7'J.] 
But  a  refusal  to  produce  books  and  pa- 
pers under  a  notice,  though  it  lays  a 
foundation  for  the  introduction  of  sec- 
ondary evidence  of  their  contents,  has 
been  held  to  afford  no  evidence  of  the 
fact  sought  to  be  proved  by  them  ;  such, 
for  example,  as  the  existence  of  a  deed 
of  conveyance  from  one  mercantile  part- 
ner to  another.  Hanson  v.  Eustace,  2 
Howard,  S.  C.  053.  [The  omi.ssion  of  a 
party  to  call  a  witness,  who  might  equally 
have  been  called  by  the  other  i)arty,  is 
no  ground  for  a  presumption  tiiat  the 
testimony  of  the  witness  would  have 
been  unfavorable.  Scovill  v.  Baldwin, 
27  Conn.  316.] 

8  2  Foth.  Obi.  (by  Evans)  292 ;  DalstoQ 


V.  Coatsworth,  1  P.  Wms.  731 ;  Cowper 
V.  Earl  Cowper,  2  P.  Wms.  720,  748-752  ; 
Rex  V.  Arundel,  Hob.  109,  explained  in 
2  P.  Wms.  748,  749 ;  D.  of  Newcastle  v. 
Ivinderly,  8  Ves.  363,  375 ;  Annesley  v. 
E.  of  Anglesea,  17  Howell's  St.  Tr.  1430. 
See  also  Sir  Samuel  Romilly's  argument 
in  Lord  Melville's  case,  29  "Howell's  St. 
Tr.  1194,  1195;  Anon.,  1  Ld.  Raym.  731; 
Broom's  Legal  Maxims,  p.  485.  In  Bar- 
ker V.  Ray,  2  Russ.  73,  the  Lord  Chan- 
cellor thought  that  this  rule  had  in  some 
cases  been  pressed  a  little  too  far.  See 
also  Harwood  v.  Goodright,  Cowp.  86. 
[See  post,  vol.  iii.  §  34.] 

*  James  v.  Biou,  2  Sim.  &  Stu.  600. 
[So  if  the  documents  are  presumably  in 
his  possession.  See  post,  vol.  iii.  §  408 ; 
Attorney-General  v.  Windsor,  24  Beav. 
679.  And  if  the  charge  be  of  fraud  or 
misconduct,  and  the  production  of  the 
papers  would  establish  his  guilt  or  in- 
nocence, the  jury  will  be  amph'  ju.-^tified 
in  inferring  guilt,  from  tlie  une.\i)lained 
fact  of  their  non-jiroduction.  Clifton  i: 
United  States,  4  How.  (U.  S.)  442.  Tam- 
pering with  witnesses  gives  rise  also  to 
adverse  presumptions.  Moriarty  v.  L. 
C.  &  D.  R.  R.  Co.,  6  L.  R.  Q.  B.  314.J 

^  Armory  v.  Delannrie,  1  Stra.  505; 
[Sutton  V.  Davenport,  27  L.  J.  C.  P.  54]. 

•^  Clunnes  v.  Pezzey,  1  Campb.  8; 
[Lawson  v.  Sweney,  8  Jur.  964]. 


CHAP.  IV.] 


PRESUMPTIVE  EVIDEiSrCE. 


45 


ever,  does  not  of  itself  furnish  any  presumption  of  law  against 
the  innocence  of  the  party,  but  is  a  matter  to  be  dealt  with  by  the 
jury.  Innocent  persons,  under  the  influence  of  terror  from  the 
danger  of  their  situation,  have  been  sometimes  led  to  the  simula- 
tion of  exculpatory  facts ;  of  which  several  instances  are  stated  in 
the  books.^  Neither  has  the  mere  non-production  of  books,  upon 
notice,  any  other  legal  effect,  than  to  admit  the  other  party  to  prove 
their  contents  by  parol,  unless  under  special  circumstances.^ 


1  See  3  Inst.  104 ;  Wills  on  Circumst. 
Evid.  113.  [In  Winchell  v.  Edwards,  57 
III.  41,  the  fabricition  of  evidence  is  held 
to  give  rise  to  the  same  presumption  as 
its  destruction.  See  also  1  Ph.  Ev.  (4th 
Am.  ed.)  Go9;  Com.  v.  Webster,  5  Cash. 
(Mass.)  316  ;  Gardner  v.  People, 6  Parker, 
155  ;  and  post,  vol.  iii.  §  34.  As  to  altera- 
tion of  evidence,  see  post,  §  565,  and 
State  V.  Knapp,  45  N.  H.  148.] 

2  Cooper  I'.  Gibbons,  3  Campb.  363. 
[Flight  may  be  evidence  of  guilt  and  so 
may  an  attempt  to  escape  from  custody, 
or  to  bribe,  concealment,  disguise,  and  the 
like.  Panning  i;.  State,  14  Mo.  386;  People 
V.  Pitcher,  15  Mich.  397;  Porter  v.  State, 
2  Ind.  35;  Dean  v.  Com,  4  Gratt.  (Va.) 
541 ;  Whaley  v.  State,  11  Geo.  127  ;  State 
V.  Staples,  47  N.  H.  113;  Campbell  i-. 
State,  23  Ala.  44.  And  it  would  seem  that 
the  absence  of  these  facts  should  afford 
some  favorable  inference  at  least  in 
strengthening  the  presimiption  of  inno- 
cence, though  it  has  been  held  that  a 
prisoner  cannot  show  that  he  refused  to 
avail  himself  of  an  opportunity  for  flight. 
Com.r.  Hersey  (without  discussion  or  au- 
thority), 2  Allen  (Mass.),  173;  People  v. 
Rathbun,  21  Wend.  (N.  Y.),  133.  Nor  is 
evidence  of  flight,  merely  as  such,  admis- 
sible to  prove  guilt,  People  v.  Stanley,  47 
Gal.  144;  though  the  fact  of  pursuit  may 
be  shown,  for  the  purpose  of  showing 
that  the  prisoner  had  an  opportunity  to 
throw  away  property  alleged  to  have 
been  stolen  ;  People  v.  Collins,  48  Cal.  277. 
But  the  rejection  seems  to  be  based  on 
the  theory  that  it  is  equivalent  to  a  dec- 
laration by  the  prisoner  in  his  own  favor. 
Tliere  is  not,  however,  the  same  objec- 
tion to  an  act  as  to  a  declaration.  In 
State  V.  Hays  (23  Mo.  287),  a  prisoner 
was  not  allowed  to  explain  his  flight,  it 
not  appearing  that  the  government  used 
the  fact  against  him,  and  the  court  re- 
fused a  new  trial,  not  on  the  ground  of 
the  correctness  of  the  refusal,  but  because 
it  was  so  clear,  upon  all  the  evidence, 
that  the  defendant  was  guilty,  that  this 
evidence,  had  it  been  admitted,  could  not 
have  aided  the  prisoner.  This  law  ap- 
pears bad  upon  both  points.    In  State 


V.  Williams,  54  Mo.  170,  it  is  held  that 
an  attempt  to  escape  raises  the  presump- 
tion of  guilt.  A  change  in  the  condition 
of  things  just  prior  to  a  view  by  the  jury 
requires  explanation.  State  v.  Knapp,  45 
N.  H.  148.  Palsehood  is  evidence  of  guilt. 
State  V.  Reed,  62  Maine,  129.  Where 
a  pajty  has  the  means  of  disproving  ad- 
verse testimony  if  it  is  false,  and  fails  to 
do  it,  the  failure  gives  rise  to  the  pre- 
sumption that  the  tcstimonv  is  true. 
Com.  U.Webster,  5  Gush.  (Mass.)  320; 
Parks  V.  Richardson,  4  B.  Mon.  (Ky.) 
276.  So  if  secondary  evidence  be  offered" 
when  better  can  be  had,  it  gives  rise  to 
the  suspicion,  that  the  better  evidence,  if 
produced,  would  be  adverse.  Shoenber- 
ger  V.  Hackman,  37  Pa.  St.  87  ;  Mordecal 
V.  Beal,  8  Port.  (Ala.)  529.  In  New  York, 
(Kelley  v.  People,  55  N.  Y.  635),  it  was' 
recently  held  that  the  failure  to  deny, 
while  under  arrest,  a  charge  of  crime  ia 
evidence  of  guilt.  But  in  Massachu- 
setts, the  rule  is  the  reverse.  Com.  v. 
Walker,  13  Allen,  570.  And  no  adverse 
presumption  arises  from  a  refusal  to  allow 
counsel  to  disclose  confidential  commu- 
nications. AVentworth  v.  Lloyd,  10  H.  of 
L.  589 ;  Bolton  v.  Corp.  of  Liverpool,  1 
My.  &  K.  88.  It  is  error  to  charge,  in 
an  ordinary  criminal  case,  that  a  prima 
facie  case  being  made  out,  not  one  free 
from  all  doubt,  but  one  requiring  ex- 
planations which  might  be  made,  then 
failure  to  explain  ought  to  remove  that 
doubt.  Chaft'ee  v.  United  States,  18  Wall. 
( U.  S.)  516.  But  the  fact  of  silence  may 
be  taken  into  consideration  as  evidence 
of  guilt.  State  v.  Cleaves,  59  Maine,  298. 
When  facts  are  equivocal,  the  presump- 
tion is  in  favor  of  honesty  and  fair  deal- 
ing.  Greenwood  v.  Lowe,  7  La.  Ann.  197. 
Truth  is  to  be  presumed  ratiier  than 
falsehood.  Harlett  v.  Hewlett,  4  Edw. 
(N.  Y.)  7.  When  an  act  may  be  legal  or 
illegal  the  presumption  is  in  favor  of 
legality.  Bumpus  v.  Fisher,  21  Tex.  661. 
A  violation  of  law  will  not  be  presumed, 
Horan  v.  Weiler,  41  Pa.  St.  470;  what  is  ac- 
cording to  usage  will  be  presumed  rather 
than  the  contrary.  Jay  i'.  Carthage,  48 
Maine,  353.    As  between  the  wrong-doer 


46 


LAW   OF  EVIDEKCE. 


[PAET  I. 


§  38.  Course  of  trade.  Other  presumptions  of  this  class  are 
founded  upon  the  experience  of  human  conduct  in  the  course  of 
trade  ;  men  being  usually  vigilant  in  guarding  their  property, 
and  prompt  in  asserting  their  rights,  and  orderly  in  conducting 
their  affairs,  and  diligent  in  claiming  and  collecting  their  dues. 
Thus,  where  a  bill  of  exchange,  or  an  order  for  the  payment  of 
money  or  delivery  of  goods,  is  found  in  the  hands  of  the  drawee, 
or  a  promissory  note  is  in  the  possession  of  the  maker,  a  legal 
presimiption  is  raised  that  he  has  paid  the  money  due  upon  it,  and 
delivered  the  goods  ordered.^  A  bank-note  will  be  presumed  to 
have  been  signed  before  it  was  issued,  though  the  signature  be 
torn  off.2  So,  if  a  deed  is  found  in  the  hands  of  the  grantee, 
having  on  its  face  the  evidence  of  its  regular  execution,  it  will  be 
presumed  to  have  been  delivered  by  the  grantor.^  So  a  receipt 
for  the  last  year's  or  quarter's  rent  is  'prima  facie  evidence  of  the 
payment   of  all  the   rent  previously  accrued.*    But  the   mere 


and  sufferer,  presumptions  are  in  favor 
of  the  latter.  Loomis  v.  Green,  7  Greenl. 
(Maine),  386;  Costigan  v.  Mohawk,  &c.,2 
Den.  (N.  Y.)  609  ;  Tinn  v.  Wharf  Co.,  7 
Cal.  243.  No  inferences  unfavorable  to 
character  is  to  be  drawn  from  the  fact 
that  a  prisoner  does  not  produce  evidence 
of  good  ciiaracter.  State  v.  Uphara,  38 
Maine,  261 ;  State  u.  O'ISfeal,  7  Ired.  (N. 
C.)  Law,  251.]  . 

1  Gibbon  v.  Featherstonhaugh,  1  Stark. 
225;  Egg  V.  Barnett,  3  Esp.  196;  Gar- 
lock  V.  Gcortner,  7  Wend.  1U8 ;  Alvord  v. 
Baker,  9  Wend.  323 ;  Weidner  v.  Schwei- 
gart,  9  Serg.  &  R.  385 ;  Shepherd  v.  Cur- 
rie,  1  Stark.  454 ;  Brembridge  v.  Os- 
borne, Id.  374.  [Carroll  v.  Bowie,  7  Gill, 
(N.  J. )  34.]  The  production,  by  the  plain- 
tiff, of  an  I  O  U,  signed  by  the  defendant, 
is  prima  facie  evidence  that  it  was  given 
by  him  to  the  plaintiff.  Curtis  v.  Rich- 
ards, 1  ]M.  &  G.  46.  [Crocker  v.  Walsh, 
2  Ir.  Law  (n.  s.),  552.  But  it  is  not 
evidence  of  money  lent.  Fessenmeyer 
V.  Adcock,  16  M.  &  W.  449;  nor  even  of 
an  account  stated  if  tlie  defendant  shows 
that  it  was  not  given  in  acknowledgment 
of  a  debt  due,  Lemere  v.  Elliot,  6  H.  & 
N.  656.]  And  where  there  are  two  per- 
sons, father  and  son,  of  tlio  same  name, 
it  is  presumed  that  tiie  father  is  intended, 
imtil  tlie  contrary  appears.  vSee  Steb- 
bing  V.  Spicer,  B  M.  G.  &  S.  827,  wliere 
the  cases  to  this  point  are  collected.  See 
also  [Stevens  v.  West,  6  Jones  (N.  C), 
Law,  49] ;  Tlie  State  v.  Vittum,  9  N.  H. 
519;  Kincaid  v.  Howe,  10  Mass.  205. 
[Where  the  name  of  tlie  grantee  of  laud 


and  that  of  a  prior  holder  and  grantor 
are  the  same,  it  will  be  presumed  they  des- 
ignate the  same  person.  Brown  v.  Meta, 
33  111.  339.  So  of  two  grants  of  land  to  the 
same  name.  Gates  v.  Loftus,  3  A.  K.  Mar. 
(Ky.)  202.  But  see  Mooers  v.  Bunker, 
29  N.  H.  420.  And  generally  identity  of 
name  is  presumptive  of  identity  of  per- 
son. Gitt  V.  Watson,  18  Mo.  274.  But 
any  difference  in  the  names  destroys  the 
presumption.  Bennett  v.  Lebhart,  27  Ind. 
489;  McMinn  v.  Whelan,  27  Cal.  300; 
Elsworth  V.  Moore,  6  Iowa,  486 ;  Bur- 
ford  V.  McCue,  53  Pa.  St.  427.  And  tlie 
party  benefited  by  a  deed  or  judgment 
will  be  presumed  to  assent  to  the  same. 
Clawson  V.  Eichbaum,  2  Grant's  Cas.  130.1 

2  Murdock  v.  Union  Bank  of  La.,  2 
Rob.  (La.)  112;  Smith  v.  Smith,  15 
N.  R.  55. 

3  -\vard  V.  Lewis,  4  Pick.  518.  [There 
is  a  legal  presumption,  that  the  property 
in  the  goods  is  in  the  consignee  named  in 
the  bill  of  lading,  so  that  he  may  sue  in 
his  own  name  to  recover  damages  for 
non-dclivcrj'  thereof,  &c.  Lawrence  ?'. 
Minturn,  17  How.  (U.  S.)  100.  So,  of  an 
unsigned  account  in  the  handwriting  of 
the  maker,  in  the  hands  of  the  debtor. 
Nichols  V.  Aisop,  10  Conn.  263.  The 
possession  by  a  party  of  a  receipt  from 
a  common  carrier  raises  the  ])resumption 
of  a  proper  delivery,  and  of  the  posses- 
sor's assent  to  its  terms.  Booman  v.  Am 
Exp.  Co.,  21  Wis.  152.1 

*  1  Gilb.  Evid.  (by  Lofft.)  300;  Brew- 
er V.  Knapp,  1  Pick.  337.  [See  also 
Ilodgdon  V.  Wight,  36  Maine,  326.] 


CHAP,  rv.] 


PEESTIMPTIVE  EVIDENCE. 


47 


delivery  of  money  by  one  to  another,  or  of  a  bank  check,  or  the 
transfer  of  stock,  unexplained,  is  presumptive  evidence  of  the 
payment  of  an  antecedent  debt,  and  not  of  a  loan.^  The  same 
presumption  arises  upon  the  payment  of  an  order  or  draft  for 
money ;  namely,  that  it  was  drawn  upon  funds  of  the  drawer  in 
the  hands  of  the  drawee.  But  in  the  case  of  an  order  for  the 
delivery  of  goods  it  is  otherwise,  they  being  presumed  to  have 
been  sold  by  the  drawee  to  the  drawer.^  Thus,  also,  where  the 
j)roprietors  of  adjoining  parcels  of  land  agree  upon  a  line  of 
division,  it  is  presumed  to  be  a  recognition  of  the  true  original 
line  between  their  lots.^ 

§  38  a.  Execution  of  instruments.  Regularity  of  acts.  Of  a 
similar  character  is  the  presumption  in  favor  of  the  due  execu- 
tion of  solemn  instruments.  Thus,  if  the  subscribing  witnesses 
to  a  will  are  dead,  or  if,  being  present,  they  are  forgetful  of  all 
the  facts,  or  of  any  fact  material  to  its  due  execution,  the  law 
will  in  such  cases  supply  the  defect  of  proof,  by  presuming  that 
the  requisites  of  the  statute  were  duly  observed.^  The  same 
principle,  in  effect,  seems  to  have  been  applied  in  the  case  of 
deeds.^ 


.  1  "Welch  V.  Seaborn,  1  Stark.  474 ; 
Patton  V.  Ash,  7  Serg.  &  R.  116,  125; 
Breton  v.  Cope,  Peake's  Cas.  30 ;  Lloyd 
V.  Sandiland,  Gow,  13,  16;  Gary  v. 
Gerrish,  4  Esp.  9 ;  Aubert  i*.  Wash,  4 
Taunt.  293;  Boswell  v.  Smith,  6  C.  &  P. 
60.  [Gerding  v.  Walter,  29  Mo.  426.] 
2  Alvord  V.  Baker,  9  Wend.  323,  324. 

*  Sparhawk  v.  Bullard,  1  Met.  95. 

*  Burgoyne  v.  Showier,  1  Roberts, 
Ecel.  10  ;  hi  re  Leach,  12  Jur.  381. 

6  Burling  v.  Paterson,  9  C.  &  P.  570  ; 
Dewey  v.  Dewey,  1  Met.  349  ;  Quimby  v. 
Buzzell,  4  Shepl.  470;  New  Haven  Co. 
Bank  v.  Mitchell,  15  Conn.  206;  infra, 
§  372,  n.  [In  re  Sandilands,  6  L.  R."(C. 
P.)  411.]  But  there  is  no  presumption  in 
the  case  of  a  deed,  that  the  witnesses,  be- 
ing dead,  would,  if  living,  testify  to  the 
grantor's  soundness  of  mind  at  the  time 
of  delivery.  Flanders  v.  Davis,  19  N.  H. 
139.  But  one  will  be  presumed  to  un- 
derstand the  contents  of  an  instrument 
signed  by  him,  and  whether  dated  or  not. 
Androscoggin  Bank  v.  Kimball,  10  Gush. 
373.  [So  also  he  will  be  conclusively  pre- 
sumed to  have  read  a  bill  of  lading  de- 
livered to  him  by  a  carrier,  there  being 
no  fraud.  Grace  v.  Adams,  100  Mass.  505. 
But  not  to  know  the  contents  of  a  notice 
printed  on  the  back  of  a  railroad  ticket. 


Malone  v.  B.  &  W.  R.  R.  Co.,  12  Gray, 

Mass.  388.  On  the  maxim, "  Omnia  praesu- 
muntur  recte  esse  acta,"  that  will  be  pre- 
sumed to  have  been  done  which  ought  to 
have  been  done,  as  that  a  bill  in  Chan- 
cery was  sworn  to.  Rex  v.  Benson,  2 
Camp.  508 ;  that  a  notice  printed,  posted, 
and  apparently  signed  by  the  comman- 
der of  a  military  post,  was  by  his  order, 
Bruce  v.  Nicolopopulo,  11  Ex.  129 ;  that 
a  church,  long  used,  was  duly  conse- 
crated, Rugg  V.  Kingsmill,  1  L.  R.  Ad.  & 
Ec.  343 ;  Reg.  v.  IMainwaring,  26  L.  J.  M. 
C.  10  ;  that  a  parish  certificate  long  recog- 
nized, was  duly  executed.  Rex  v.  Upton 
Gray,  10  B.  &  C.  807 ;  Reg.  v.  Stainforth, 
11  Q.  B.  66;  and  generally  when  an 
official  act  has  been  done,  which  can 
only  be  lawful  and  valid,  by  the  doing 
of  certain  preliminary  acts,  it  will  be 
presumed  that  those  preliminary  acts 
have  also  been  done.  Rex  v.  Whiston, 
4  A.  &  E.  607 ;  Reg.  v.  Broadhempston, 
28  L.  J.  N.  C.  18  ;  Cosset  v.  Howard,  10 
Q.  B.  411.  So  it  will  be  presumed  that 
the  designation  of  a  foreign  official  is 
true.  Salter  v.  Apptegate,  3  Zabr.  (N. 
J.)  115.  But  jurisdiction  will  not  be 
presumed  in  favor  of  inferior  courts  ;  or 
those  established  for  special  purposes, 
Eex  V.  All  Saints,  &c.,  7  B.  &  C.  790; 


48 


LAW   OF  EVIDENCE. 


[PAET  I. 


§  39.  Lapse  of  time.  On  the  same  general  principle,  where  a 
debt  due  by  specialty  has  been  unclaimed,  and  without  recog- 
nition, for  tioenty  years,  in  the  absence  of  any  explanatory  evi- 
dence, it  is  presumed  to  have  been  paid.^  The  jury  may  infer 
the  fact  of  payment  from  the  circumstances  of  the  case,  within 
that  period  ;  but  the  presumption  of  law  does  not  attach,  till  the 
twenty  years  are  expired.^  This  rule,  with  its  limitation  of 
twenty  years,  was  first  introduced  into  the  courts  of  law  by  Sir 
Matthew  Hale,  and  has  since  been  generally  recognized,  both  in 
the  courts  of  law  and  of  equity.^  It  is  applied  not  only  to  bonds 
for  the  payment  of  money,  but  to  mortgages,  judgments,  warrants 
to  confess  judgments,  decrees,  statutes,  recognizances,  and  other 
matters  of  record,  when  not  affected  by  statutes  ;  but  with  respect 
to  all  other  claims  not  under  seal  nor  of  record,  and  not  otherwise 
limited,  whether  for  the  payment  of  money,  or  the  performance 
of  specific  duties,  the  general  analogies  are  followed,  as  to  the 
application  of  the  lapse  of  time,  which  prevail  on  kindred  sub- 
jects."*    But  in  all  these  cases,  the  presumption  of  payment  may 


Reg.  V.  Totness,  11  Q.  B.  80.  So  it  will 
be  presumed  tliat  lost  instruments  had 
all  tlie  requisites  to  make  them  valid, 
as  that  they  were  stamped,  Hart  v. 
Hart,  1  Hare,  1;  Rex  v.  Long  Buckby, 
7  East,  45.  I3ut  not  if  when  last  seen 
they  were  not  stamped.  Arbor  v.  Fiis- 
sell,  9  Jur.  n.  s.  753.  But  wlien  it  ap- 
pears that  there  was  opportunity  for  im- 
position, undue  influence,  overreaching, 
an  unconscionable  advantage  on  the  part 
of  the  party  who  seeks  to  establish  the 
instrument,  courts  of  equity  at  least  will 
require  more  or  less  proof  according  to 
circumstances.  Baker  v.  Bradley,  25  L. 
J.  Ch.  7  ;  Cooke  v.  Lamotte,  15  Beav. 
234;  Grcsley  v.  Mouselev,  28  L.  J.  Ch. 
620;  Lvon  v.  Home,  37  L.J.  Ch.  604; 
Dimsdaie  v.  Dimsdale,  25  L  J.  Ch.  806; 
Baker  v.  Monk,  33  Beav.  410.  Courts 
of  equity  will  j)resume,  especially  as  be- 
tween those  sustaining  fiduciary  or  con- 
fidential relations,  voluntary  gifts  to  be 
invalid,  unkss  satisfied  upon  proof,  there 
was  no  imposition,  undue  influence,  or 
other  wrong.  Nottage  v.  Prince,  2  Glff. 
246 ;  1  Story,  Eq.  Jur.  §§  308-324.  Not, 
however,  if  tlie  relation  is  unlawful,  a.s 
where  a  mistress  sets  up  a  violation  of 
confidence  on  the  part  of  her  paramour. 
Hargreave  v.  Everard,  6  Ir.  Eq.  n.  8. 
278.] 

1  [Post,  §  41.] 

2  Oswald  V.  Leigh,  1  T.  R.  270;  Hilla- 


ry V.  Wellar,  12  Ves.  264 ;  Colsell  v.  Budd, 
1  Campb.  27;  Boltz  v.  Ballraan,  1  Yates, 
584;  Cottle  v.  Payne,  3  Day,  289.  In 
some  cases,  tlie  presumption  of  payment 
has  been  made  by  the  court,  after  eigh- 
teen years.  Rex  v.  Stephens,  1  Burr. 
434  ;  Clark  v.  Hopkins,  7  Johns.  556 ; 
but  tliese  seem  to  be  exceptions  to  the 
general  rule. 

3  Mathews  on  Presumpt.  Evid.  379; 
Haworth  v.  Bostock,  4  Y.  &  C.  1 ;  Gren- 
fell  V.  Girdlestone,  2  Y.  &  C.  562. 

*  This  presumption  of  the  common 
law  is  now  made  absolute  in  the  case  of 
debts  due  by  specialtv,  bv  Stat.  3  &  4 
Wm.  IV.  c.  42,  §  3.  See  also  Stat.  3  &  4 
Wm.  IV.  c.  27,  and  7  Wm.  IV.  &  1  Vic. 
c.  28.  It  is  also  adopted  in  Neiv  York, 
by  Rev.  Stat,  part  3,  c.  4,  tit.  2,  art. 
5,  and  is  repcllable  only  by  written  ac- 
knowledgment, made  within  twenty 
years,  or  proof  of  part  paj-ment  within 
that  period.  In  Man/laiul,  the  lapse  of 
twelve  years  is  made  a  conclusive  pre- 
sumption of  payment,  in  all  cases  of 
bonds,  judgments,  recognizances,  and 
other  specialties,  by  Stat.  1715,  c.  23, 
§6;  1  Dorscv's  Laws  of  Marvl.  p,  11; 
Carroll  v.  Waring,  3  Gill  &  Johns.  401. 
A  like  provision  exists  in  Massnchnseltn, 
as  to  judgments  and  decrees,  after  the 
lapse  of  twenty  rears.  Rev.  Stat.  c. 
120,  §  24. 


CHAP.  IV.]  PEESITMPTIYE  EVIDENCE.  49 

be  repelled  by  any  evidence  of  the  situation  of  the  parties,  or 
other  circumstance  tending  to  satisfy  the  jury  that  the  debt  is 
still  due.^ 

§  40.  Course  of  business.  Under  this  head  of  presumptions 
from  the  course  of  trade,  may  be  ranked  the  presumptions  fre- 
quently made  from  the  regular  course  of  business  in  a  public  office. 
Thus  postmarks  on  letters  are  prima  facie  evidence,  that  the  letters 
were  in  the  post-office  at  the  time  and  jDlace  therein  specified.^ 
If  a  letter  is  sent  by  the  post,  it  is  presumed,  from  the  known 
course  in  that  department  of  the  public  service,  that  it  reached 
its  destination  at  the  regular  time,  and  was  received  by  the  person 
to  whom  it  was  addressed,  if  living  at  the  place,  and  usually 
receiving  letters  there. ^  So,  where  a  letter  was  put  into  a  box 
in  an  attorney's  office,  and  the  course  of  business  was  that  a  bell- 
man of  the  post-office  invariably  called  to  take  the  letters  from 
the  box ;  this  was  held  sufficient  to  presume  that  it  reached  its 
destination.'^  So,  the  time  of  clearance  of  a  vessel,  sailing  under 
a  license,  was  presumed  to  have  been  indorsed  upon  the  license, 
which  was  lost,  upon  its  being  shown  that,  without  such  indorse- 
ment, the  custom-house  would  not  have  permitted  the  goods  to  be 
entered.^  So,  on  proof  that  goods  which  cannot  be  exported 
without  license  were  entered  at  the  custom-house  for  exportation, 
it  will  be  presumed  that  there  was  a  license  to  export  them.*^ 
The  return  of  a  sheriff,  also,  which  is  conclusively  presumed  to 

1  A  more  extended  consideration  of  reached  the  hands  of  the  officer  on  the 
this  subject  being  foreign  from  tlie  plan  day  of  its  date.  Cliickering  v.  Failes,  20 
of  tilts  work,  the  reader  is  referred  to  the     111.  507.] 

treatise  of  Mr.  Mathews  on  Presumptive  ^  Saunderson  v.  Judge,  2  H.  Bl.  500; 
Evidence,  c.  19,  20;  and  to  Best  on  Bussard  v.  Levering,  6  Wheat.  102;  Lin- 
Presumptions,  part  1,  c.  2,  3.  [Gran-  denberger  v.  Bcal,  lb.  104;  Bayley  on 
tham  r.  Canaan,  38  N.  H.  268.]  Bills  (by  Phillips  &    Sewall),  275,  276, 

2  Fletcher  v.  Braddyl,  3  Stark.  64 ;  277 ;  Walter  v.  Haynes,  Ry.  &  M.  149 ; 
Rex  V.Johnson,  7  East,  65.  [In  criminal  Warren  v.  Warren,  1  Or.  M.  &  R.  2.50; 
cases  at  least,  the  post-mark  must  be  Russell  v.  Beuckley,  4  R.  I.  525.  [See 
proved  to  be  genuine.]  Rex  v.  Watson,  post,  vol.  ii.  §  188,  and  note;  Loud  v.  Mcr- 
1  Campb.  215;  Rex  r.  Plumer,  Russ.  &  rill,  45  Maine,  516;  conlni,  see  Freeman 
Rv.  264;  New  Haven  Co.  Bank  r.  Mitch-  v.  Morey,  lb.  50.  So  of  a  telegraphic 
ell,  15  Conn.  206.  [The  date  a  letter  or  despatch.  Com.  v.  Jeffries,  7  Allen 
any  document  bears   will  be   regarded,  (Mass.),  548.] 

pruna  facie,  as  its  true  date.     Malpas  i».  *  Skilbeck    v.    Garbett,   9   Jur.  339; 

Clements,  19  L.  J.  (Q.  B.)  435  ;  Anderson  s.  c.  7  Ad.  &  El.  N.  s.  84G.     Spencer  v. 

V.  Weston,  6  Bing.  N.  C.  -300;    Potez  i;.  Thompson,  6  Jr.  L.  n.  s.  537.     [So  where 

Glossop,  2  Ex.  191 ;  unless  there  appear  the  letter  was  left  with  tiie  servant  of 

to  be  something  in  the  circumstances  to  the  person  to  whom   it  was  addressed, 

show  an  interest  in  ante  or  post  dating.  McGregor  v.  Keily,o  Ex.  704.] 
Sinclair  v.  Baggallev,  4  M.  &  W.  318;  5  Butler  u.  Allnut,  1  Stark.  222. 

Trelawney    v.   Coleman,  2   Stark.    193.  <=  Van  Omeron  v.  Dowick,  2  Campb. 

And  a  writ  has  been  presumed  to  have  44. 


50 


LAW   OF  EVIDENCE. 


[PAKT  I. 


be  true,  between  the  parties  to  the  process,  is  taken  priina  facie 
as  true,  even  in  his  own  favor ;  and  the  burden  of  proving  it 
false,  in  an  action  against  him  for  a  false  return,  is  devolved  on 
the  plaintiff,  notwithstanding  it  is  a  negative  allegation.^  In 
fine,  it  is  presumed,  until  the  contrary  is  proved,  that  every  man 
obeys  the  mandates  of  the  law,  and  performs  all  his  official  and 
social  duties.2  The  like  presumption  is  also  drawn  from  the 
usual  course  of  men's  private  offices  and  business,  where  the 
primary  evidence  of  the  fact  is  wanting,^ 

§  41.  Continuity.  Other  presumptions  are  founded  on  the  experi- 
enced continuance  or  permanency,  of  longer  and  shorter  duration, 
in  human  affairs.  When,  therefore,  the  existence  of  a  person,  a  per- 
sonal relation,  or  a  state  of  things,  is  once  established  by  proof,  the 
law  presumes  that  the  j)erson,  relation,  or  state  of  things  continues 
to  exist  as  before,  until  the  contrary  is  shown,  or  until  a  different 
presumption  is  raised,  from  the  nature  of  the  subject  in  question.* 


1  Clark  V.  Lyman,  10  Pick.  47;  Boyn- 
ton  V.  Willard,  Id.  169. 

2  Ld.  Halifax's  case,  Bull.  N.  P.  [298] ; 
Bank  United  States  v.  Dandridge,  12 
Wheat.  09,  70;  Williams  v.  E.  Lid.  Co.,  3 
East,  192;  Hartwell  v.  Root,  19  Johns. 
345;  The  Mary  Stewart,  2  W.  Rob.  Adm. 
244;  [Lea  v.  Polk  County  Copper  Co., 
21  liow.  (U.  S.)  493;  Cooper  v.  Cranberry, 
33  Miss.  117;  Curtis  t-.  Herrick,  14  Cal. 
117;  Isl)ell  V.  N.  Y.  &  N.  Haven  R.  R. 
Co.,  25  Conn.  556].  Hence,  children  born 
during  the  separation  of  husband  and 
wife,  by  a  decree  of  divorce  a  inensa  et 
thoro,  are,  prima  facie,  illegitimate.  St. 
George  v.  St.  Margaret,  1  Salk.  123 
[Drake  v.  Mooney,  31  Vt.  617;  Shelbv- 
viile  V.  Shelby ville,  1  Met.  (Ky.)  54; 
Cobb  I'.  >.'ewcomb,  7  Clarke  (Iowa),  43). 

8  Doe  V.  Turford,  3  B.  &  Ad.  890, 
895;  Champnevs  v.  Peck,  1  Stark. 
404 ;  Pritt  v.  Falrclongh,  3  Cainpb.  305 ; 
Dana  v.  Kemble,  19  Pick.  112.  [So  in 
the  common  cour.se  of  affairs  the  fact 
that  a  person  has  acted  in  any  official 
capacity  is  prima  fucie  evidence  that  he 
has  been  duly  clothed  with  authority  so 
to  act,  since  it  is  not  to  be  presumed  that 
any  one  would  assume  so  to  act  witiiout 
auihorily.  And  tliis  is  so,  wiiether  the 
authority  is  conferred  by  writing  or  un- 
der seal,  Dexter  v.  Hayes,  II  Ir.  Law, 
N.  s.  lOG;  or  the  action  be  brought  in  the 
name  of  the  officer,  McMalion  v.  Lennanl, 
G  H.  of  L.  (;as.  970;  and  the  title  be  di- 
rectly put  in  pleading,  Caswell  v.  Curtis, 
2  Hing.  N.  C.  22s> ;  or  though  the  proceed- 
ings be  in  a  criminal  case,  as  in  the  trial 


for  the  murder  of  a  constable.  Rex  v, 
Gordon,  1  Leach,  C.  C.  515;  or  a  post- 
office  clerk  for  embezlement,  Clay's  case, 
2  East,  P.  C.  580 ;  Rex  v.  Barrett,  6  C.  & 
P.  124.  The  same  rule  applies  to  cor- 
porations. Their  acts  are  presumed  to 
be  authorized  by  their  charters.  Bank 
of  U.  S.  V.  Dandridge,  12  Wheat.  (U.  S.) 
70.  That  public  officers  and  persons  in 
authority  do  their  duty,  and  that  their 
acts  are  lawful  and  proper,  is  to  be  pre- 
sumed in  the  absence  of  evidence  to  the 
contrary.  Grey  v.  Washburn,  23  Cal.  Ill  ; 
Todernier  v.  Aspinwall,  43  111.  409 ;  Ross 
i\  Reed,  1  Wheat.  (U.  S.)  482;  Minter  v. 
Crommclin,  18  How.  (U.  S.)  87;  Nelson 
V.  People,  23  N.  Y.  293 ;  and  their  acts, 
within  the  scope  of  their  authority,  are 
^presumed  to  be  official,  Balcombe  v. 
Northup,  0  Minn.  172;  Salter  v.  Apple- 
gate,  3  Zabr.  (N.  J.)  115;  and,  in  the  ab- 
sence of  evidence  as  to  tlie  scope  of  tlieir 
authority,  their  acts  will  be  ])resunied 
to  be  within  it,  Jones  v.  Muisbach,  26 
Tex.  235.] 

*  [Ownership  of  personal  property  is 
presumed  to  continue  till  a  sale  is  shown. 
l\Iere  change  of  possession  does  not  suf- 
fice to  control  the  iiresumiition,  McGee 
V.  Scott,  9  Cush.  (Mass.)  148;  so  a  cus 
torn  to  continue.  Scales  v.  Key,  11  A. 
&  E.  819;  a  pauper  to  retain  his  settle- 
ment, Rex  V.  Tanner,  1  Esp.  230 ;  a  per- 
son to  retain  liis  residence,  Kilburn  v. 
Bcnnet,  3  Mete.  (Mass.)  199;  Prathcr  v. 
Palmer,  4  Ark.  456;  coverture  to  con- 
tinue, Erskine  v.  Davis,  25  111.  251 ;  a 
judguient  to  remain  in  force,  Murjihy  v. 


CHAP.  IV.] 


PEESTJMPTIVE  EVIDENCE. 


51 


Thus,  where  the  issue  is  upon  the  life  or  death  of  a  person,  once 
shown  to  have  been  living,  the  burden  of  proof  lies  upon  the  party 
who  asserts  the  death.i  B^t  after  the  lapse  of  seven  years,  mth- 
out  intelligence  concerning  the  person,  the  presumption  of  life 
ceases,  and  the  burden  of  proof  is  devolved  on  the  other  party .2 
This  period  was  inserted,  upon  great  deliberation,  in  the  statute 
of  bigamy ,3  and  the  statute  concerning  leases  for  lives,*  and  has 
since  been  adapted,  from  analogy  in  other  cases.^     But  where  the 


Orr,  32  111.  498 ;  a  state  of  mind  to  con- 
tinue, Blackburn  v.  State,  23  Ohio  St.  146. 
See  also  Farr  v.  Payne,  40  Vt.  615 ;  Leport 
V.  Todd,  32  N.  J.  L.  124 ;  and  post,  §§  42, 
47,  n.] 

1  Throgmorton  v.  Walton,  2  Eoll. 
461 ;  Wilson  v.  Hodges,  2  East,  313 ;  Bat- 
tin  V.  Bigclow,  1  Pet.  C.  C.  452 ;  Gille- 
land  V.  Martin,  3  McLean,  490.  "  Vivere 
etiam  usque  ad  centum  annos  quilibet 
praesumitur,  nisi  probetur  mortuus." 
Corpus  Juris  Glossatum,  torn.  ii.  p.  718, 
n.  (q) ;  Mascard.  De  Prob.  vol.  i.,  Concl. 
103,  n.  5.  [Our  law  has  not  fixed  the 
limit  when  the  presumption  will  cease. 
Life  to  the  common  age  of  man  may  be 
presumed.  Stevens  v.  McNamara,  36 
Maine,  176.  And  the  extreme  age  of  a 
hundred  years  will  not  warrant  a  con- 
clusive presumption  of  death,  Burnly 
V.  Ball,  24  Geo.  505 ;  nor  of  infirm  health 
and  eighty  years.  ^Klatter  of  Hall,  Wall. 
Jr.  83.  On  the  other  hand,  where  a 
term  was  for  sixty  years,  the  possibility 
of  the  termor  being  alive  after  the  ex- 
piration of  the  term  was  considered  by 
the  court,  Beverley  v.  Beverley,  2  Vern. 
131 ;  Doe  v.  Andrews,  15  Q.  B.  756  ;  and 
a  deposition  taken  sixty  years  before  the 
trial  was  rejected,  no  search  having  been 
made  for  the  deponent,  and  no  reason 
shown  why  he  was  not  produced,  Ben- 
son V.  Olive,  2  Str.  920.] 

'^  Hopewell  v.  I)e  Pinna,  2  Campb. 
113;  Loring  v.  Steinenian,  1  Mete.  204; 
Cofer  V.  Thermond,  1  Kelly,  538.  This 
presumption  of  death,  from  seven  years' 
absence,  was  questioned  by  the  Vice- 
Chancellor  of  England,  who  said  it  was 
"daily  becoming  more  and  more  unten- 
able;" in  Watson  v.  England,  14  Sim. 
28 ;  and  again  in  Dowley  v.  Winfield,  Id. 
277.  But  tlie  correctness  of  his  remark 
is  doubted  in  5  Law  Mag.  n.  s.  338,  339  ; 
and  the  rule  was  subsequently  adhered 
to  by  the  Lord  Chancellor  in  Cuthbert 
V.  Purrier,  2  Phill.  199,  in  regard  to  the 
capital  of  a  fund,  the  income  of  which 
was  bequeathed  to  an  absent  legatee; 
though  he  seems  to  have  somewhat  re- 
laxed the  rule  in  regard  to  the  accumu- 


lated dividends.  See  7  Law,  201.  The 
presumption  in  such  cases  is,  that  the 
person  is  dead;  but  not  that  he  died  at 
the  end  of  the  seven  years,  nor  at  any 
otlier  particular  time.  Doe  it.  Nepean, 
5  B.  &  Ad.  86 ;  2  M.  &  W.  894.  [Death 
is  presumed  from  the  person  not  being 
heard  from  for  seven  years,  and  whoever 
has  to  make  out  the  case  of  death  at  any 
particular  time  must  prove  it  by  affirma- 
tive evidence;  and  those  who  claim  im  . 
der  a  person  who  is  said  to  have  survived 
a  particular  period,  must  prove  the  fact. 
Lewes  Trusts,  L.  11. 11  Eq.  236 ;  s.  c.  af 
firmed,  L.  R.  6  Ch.  3-56.]  The  time  of  the 
death  is  to  be  inferred  by  the  jury  from 
the  circumstances.  Rust  i'.  Baker,  8 
Sim.  443 ;  Smith  v.  Knowlton,  11  N.  H. 
191;  Doe  v.  Flanagan,  1  Kelly,  543; 
Burr  V.  Sim.  4  Whart.  150  ;  Bradley  v. 
Bradley,  Id.  173  [Whiteside's  appeal,  23 
Penn.  St.  114;  Spencer  v.  Roper,  13  Ired. 
333;  Primm  v.  Stewart,  7  Texas,  178. 
See  also  Creed,  In  re,  19  Eng.  Law  &  Eq. 
119;  Merritt  v.  Thompson,  1  Hilton,  5-50. 
Where  a  party  who  takes  under  a  will 
has  not  been  heard  of  for  seven  j^ears, 
the  testator  having  died  after  three  years 
had  elapsed,  and  advertisement  issued  on 
the  death  of  the  testator  failing  to  pro- 
duce any  information,  such  legatee  must 
be  assumed  to  have  survived  the  testator, 
and  cannot  be  presumed  to  have  died  at 
any  particular  period  during  the  seven 
years.  Dunn  v.  Snowdon,  11  W.  R.  160. 
A  young  sailor  was  last  seen  in  the  sum- 
mer of  1840,  going  to  Portsmoutli  to  em- 
bark. His  grandmother  died  in  March, 
1841.  It  was  presumed  that  he  was  the 
survivor.     Tindall,  In  re,  30  Beav.  151]. 

3  1  Jac.  L  c.  11. 

*  19  Car.  II.  c.  6. 

5  Doe  V.  Jesson.  6  East,  85 ;  Doe  v. 
Deakin,  4  B.  &  Aid.  433 ;  King  v.  Pad- 
dock, 18  Johns.  141.  It  is  not  necessary 
that  the  party  be  proved  to  be  absent 
from  the  United  States ;  it  is  sufficient, 
if  it  appears  that  he  has  been  absent  for 
seven  years,  from  the  particular  State  of 
his  residence,  without  having  been  heard 
from.    Newman  v.  Jenkins,  10  Pick.  515 ; 


52  LAW   OF   EVIDENCE.  [PAUT  I. 

presumption  of  life  conflicts  with  that  of  innocence,  the  latter  is 
generally  allowed  to  prevail.^  Upon  an  issue  of  the  life  or  death 
of  a  party,  as  we  have  seen  in  the  like  case  of  the  presumed  pay- 
ment of  a  debt,  the  jury  may  find  the  fact  of  death  from  the  lapse 
of  a  shorter  period  than  seven  years,  if  other  circumstances 
concur ;  as,  if  the  party  sailed  on  a  voyage  which  should  long 
since  have  been  accomplished,  and  the  vessel  has  not  been  heaivl 
from.2  But  the  presumption  of  the  common  law,  independent  of 
the  finding  of  the  jury,  does  not  attach  to  the  mere  lapse  of  time, 
short  of  seven  years,^  unless  letters  of  administration  have  been 
granted  on  his  estate  within  that  period,  which,  in  such  case,  are 
conclusive  proof  of  his  death.* 

§  42.  Partnership.  On  the  same  ground,  a  partnership,  or  other 
similar  relation,  once  shown  to  exist,  is  presumed  to  continue,  until 
it  is  proved  to  have  been  dissolved.^  And  a  seisin,  once  proved 
or  admitted,  is  presumed  to  continue,  until  a  disseisin  is  proved.® 
The  opinions,  also,  of  individuals,  once  entertained  and  expressed, 
and  the  state  of  mind,  once  proved  to  exist,  are  presumed  to  re- 
main unchanged,  until  the  contrary  appears.  Thus,  all  the  mem- 
bers of  a  Christian  community  being  presumed  to  entertain  the 
common  faith,  no  man  is  supposed  to  disbelieve  the  existence  and 
moral  government  of  God,  until  it  is  shown  from  his  own  declara- 
tions. In  like  manner,  every  man  is  presumed  to  be  of  sane 
mind,  until  the  contrary  is  shown  ;  but,  if  derangement  or  imbe- 
cility be  proved  or  admitted  at  any  particular  period,  it  is  pre- 

Innis  V.  Campbell,  1  Rawle,  373;  Spurr  See  also  Sillick  v.  Booth,  1  Y.  &  Col.  N. 

V.  Trimble,  1  A.  K.  Marsh.  278;   Wain-  C.  117.    [Main, /»  re,  1  Sw.  &  Tr.  11.]    If 

bough  V.  Shenk,  I  Penningt.  1G7  ;  Woods  the  person  was  unmarried  when  he  went 

V.  Woods,  2  Bay,  476;  1  N.  Y.  Rev.  Stat,  abroad  and  w\as  last  heard  of,  the  pre- 

749,  §  0.  sumption  of  his  death  carries  with  it  the 

^  Hex  V.  Twyning,  2  B.  &  Aid.  385;  presumption  that  he  died  witliout  issue. 

supra,  §  35   [Spears  v.  Burton,  31  Miss.  Ilowe  v.  Hasland,  1  W.  Bl.  404;  Doe  v. 

547].     But  there  is  no  absolute  presunip-  GriflBn,  15  East,  203. 

tiou  of  law  as  to  the  continuance  of  life ;  ^  Watson    v.    King,    1    Stark.    121; 

nor  any  absolute  presumption  against  a  Green  v.  Brown,  2  Stra.  IIO'J;  Park  on 

person's  doing  an  act  because  the  doing  Ins.  433. 

of   it  would  be  an  offence  against  the  *  Newman  v.  Jenkins,   10  Pick.   515. 

law.     In  every  case  the  circumstances  The  production  of  a  will,  with  proof  of 

must  be  considered.     Lapsley  v.  Grier-  payment  of  a  legacy  under  it,  and  of  an 

son,  1  H.  L.  Cas.  408.  entry  in   the  register  of  burials,   were 

-  In  the  case  of  a  missing  ship,  bound  held   sufficient  evidence  of   the  party's 

from    Manilla   to  London,  on   wliicii  tlie  death.     Doe   v.  Penfold,  8  C.  &  P.  530 

untlerwriters    had    voluntarily   paid   the  [Tisdale  y.  Conn.  Ins.  Co.,  20  Iowa,  170.1 

amount  insured,  the  deatii  of  those  on  ^  Alderson  v.  Clay,  1    Stark.  405;  2 

board  was  presumed  by  the  Prerogative  Stark.  Evid.  500,  G88  [Eames  v.  Eames, 

Court,   after  an    absence   of    only    two  41  N.  H.  177  ;  Clark  r.Ale.xander,  8  Scott, 

years,  and  administration    was   granted  N.  R.  161]. 

accordingly.     In  re  ilutton,  1  Curt.  505.  *  Brown  v.  King,  5  Mete.  173. 


CHAP.  IV.]  PRESUIMPTIVE  EVIDENCE.  53 

sumed  to  continue,  until  disproved,  unless  the  derangement  was 
accidental,  being  caused  by  the  violence  of  a  disease.^ 

§  43.  A  spii'it  of  comity  and  a  clisposition  to  friendly  intercourse 
are  also  presumed  to  exist  among  nations,  as  well  as  among  indi- 
viduals. And,  in  the  absence  of  any  positive  rule,  affirmmg,  or 
den^'ing,  or  restraining  the  operation  of  foreign  laws,  courts  of 
justice  presume  the  adoption  of  them  by  their  own  government, 
unless  they  are  repugnant  to  its  policy,  or  prejudicial  to  its  inter- 
est.^ The  instances  here  given,  it  is  believed,  will  sufficiently 
illustrate  this  head  of  presumptive  evidence.  Numerous  other 
examples  and  cases  may  be  found  in  the  treatises  already  cited, 
to  which  the  reader  is  referred.^ 

§  44.  Presumptions  of  Fact,  usually  treated  as  composing 
the  second  general  head  of  presumptive  evidence,  can  hardly  be 
said,  with  propriety,  to  belong  to  this  branch  of  the  law.  They 
are,  in  truths  but  mere  arguments,  of  which  the  major  premise  is 
not  a  rule  of  law ;  they  belong  equally  to  any  and  every  subject- 
matter  ;  and  are  to  be  judged  by  the  common  and  received  tests 
of  the  truth  of  propositions  and  the  validity  of  arguments.  They 
depend  upon  their  own  natural  force  and  efficacy  in  generating 
belief  or  conviction  in  the  mind,  as  derived  from  those  connec- 
tions, which  are  shown  by  experience,  irrespective  of  any  legal 
relations.  They  differ  from  presumptions  of  law  in  this  essential 
respect,  that  while  those  are  reduced  to  fixed  rules,  and  constitute 
a  branch  of  the  particular  system  of  jurisprudence  to  which  they 
belong,  these  merely  natural  presumptions  are  derived  wholly  and 
directly  from  the  circumstances  of  the  particular  case,  by  means 


1  Attorney-General  v.  Pamther,  3  Bro.  (Mass. ),  308 ;  Cox  v.  Morrow,  14  Ark.  603 ; 
Ch.  Cas.  443  ;  Peaslee  v.  Robbins,  3  Mete.  Holmes  v.  Broughton,  10  Wend.  (N.  Y.) 
164 ;  Hix  v.  Whittemore,  4  Mete.  545  75 ;  Bundy  v.  Hart,  46  Mo.  463 ;  Reese  i'. 
[Perkins  v.  Perkins,  39  N.  H.  163;  Titlow  Harris,  27  Ala.  301 ;  Crake  v.  Crake,  18 
I'.  Titlow,  o4  Pa.  St.  216 ;  Ripley  v.  Bab-  Ind.  156  ;  Hill  r.  Grigsby,  32  Cal.  55 ; 
cock,  13  Wis.  425;  Walcot  r.  Alleyn,  Walsh  v.  Dart,  12  Wis.  636;  Bramliall 
Miln.  Ec.  Ir.  69;  White  v.  Wilson,  13  v.  Van  Campen,  8  Minn.  13;  Green  v. 
Ves.  87];  1  Collinson  on  Lunacy,  55;  Rugely,  23  Texas,  539 ;  Lucas  v.  Ladew, 
Shelford  on  Lunatics,  275 ;  1  Hal.  P.  C.  28  Mo.  342.  But  there  is  no  such  pre- 
30;  Swinb.  on  Wills,  Part  IL  §  iii.  6,  7.  sumption  as  to  statute  law;  nor  will  it 
[See  post,  vol.  ii.  §  369-374,  tit.  "  In-  be  allowed  to  work  a  forfeiture  by  ren- 
eanity,"  and  §§  689,  690.]  dering  a  contract  void.   Cutter  v.  Wright, 

2  Bank  of  Augusta  v.  Earle,  13  Peters,  22  N.  Y.  472  ;  Smith  v.  Whittaker,  2-3^111. 
519 ;  Story  on  Confl.  of  Laws,  §§  36,  37.  367.] 

[In  the  absence  of  proof  to  the  contrary,  8  ggg  Mathews  on  Presumptive  Evid. 

the  common  law  of  another  State,  both  c.  11-22 ;  Best  on  Presumptions,  jiassim 

civil  and  criminal,  will  be  presumed  to  be  [and  the  several  titles  in  2d  and  3d  vols, 

the  same  as  that  of  the  tribunal  of  trial,  post], 
Cluff  V.  Mut.  Benefit  Life  Ins.  Co..  13  Allen 


54  LAW   OF   EVIDENCE.  [PAET  I. 

of  the  common  experience  of  mankind,  without  the  aid  or  control 
of  any  rules  of  law  whatever.  Such,  for  example,  is  the  infer- 
ence of  guilt,  drawn  fi'om  the  discovery  of  a  broken  knife  in  the 
pocket  of  the  prisoner,  the  other  part  of  the  blade  being  found 
sticking  in  the  window  of  a  house,  which,  by  means  of  such  an 
instrument,  had  been  burglariously  entered.  These  presumptions 
remain  the  same  in  their  nature  and  operation,  under  whatever 
code  the  legal  effect  or  quality  of  the  facts,  when  found,  is  to  be 
decided.! 

§  45.  Accomplices.  Admissions.  There  are,  however,  some  few 
general  propositions  in  regard  to  matters  of  fact,  and  the  weight  of 
testimony  by  the  jury,  which  are  universally  taken  for  granted  in 
the  administration  of  justice,  and  sanctioned  by  the  usage  of  the 
bench,  and  which,  therefore,  may  with  propriety  be  mentioned  un- 
der this  head.  Such,  for  instance,  is  the  caution,  generally  given 
to  juries,  to  place  little  reliance  on  the  testimony  of  an  accomplice, 
unless  it  is  confirmed,  in  some  material  point,  by  other  evidence. 
There  is  no  presumption  of  the  common  law  against  the  testimony 
of  an  accomplice;  yet  experience  has  shown,  that  persons  capable 
of  being  accomplices  in  crime  are  but  little  worthy  of  credit ;  and 
on  this  experience  the  usage  is  founded.^  A  similar  caution  is  to 
be  used  in  regard  to  mere  verbal  admissions  of  a  party ;  this  kind 
of  evidence  being  subject  to  much  imperfection  and  mistake.^ 
Thus,  also,  though  lapse  of  time  does  not,  of  itself,  furnish  a  con- 
clusive legal  bar  to  the  title  of  the  sovereign,  agreeably  to  the 
maxim,  "  nullum  tempus  occurrit  regi ; "  yet,  if  the  adverse  claim 
could  have  had  a  legal  commencement,  juries  are  instructed  or 
advised  to  presume  such  commencement,  after  many  years  of 
uninterrupted  adverse  possession  or  enjoyment.  Accordingly, 
royal  grants  have  been  thus  found  by  the  jury,  after  an  indefi- 
nitely long-continued  peaceable  enjoyment,  accompanied  by  the 
usual  acts  of  ownership.*    So,  after  less  than  forty  years'  posses- 

1  See  2  Stark.  Evid.  684 ;  6  Law  Mag.  Rex  v.  Simmons,  6  C.  &  P.  540 ;  Williams 
370.  This  subject  has  been  very  sue-  v.  Williams,  1  Hapg.  Consist.  304.  See  in- 
cessfully  illustrated  by  Mr.  Wills,  in  his  fra,  under  the  head  of  Admissions,  §  200. 
"  Essay  on  the  Rationale  of  Circumstan-  *  Rex  v.  Brown,  cited  Cowp.  110; 
tial  Evidence,"  passim.  [The  facts  from  Mayor  of  Kingston  v.  Horner,  Cowp.  102 ; 
which  a  presumption  or  inference  is  to  Eldridge  v.  Knott,  Cowp.  215;  Mather  v. 
be  drawn  must  be  proved  by  direct  evi-  Trinity  Church,  3  S.  &  R.  509;  Roe  v, 
dence,  and  not  be  presumed  or  inferred.  Ireland,  11  East,  280 ;  Read  i*.  Brookman, 
Douglass  y.  Mitchell,  35  Penn.  440.]  8  T,  R.  159;    Goodtitle  v.  Baldwin,  11 

2  See  infra,  §§  380,  381.  East,  488;  2  Stark.  Evid.  672, 
»  Earle  v.  Picken,  5  C.  &  P.  542,  n.; 


CHAP.  IV.]  PEESUJMPTIVE  EVIDENCE.  55 

sion  of  a  tract  of  land,  and  proof  of  a  prior  order  of  council  for 
the  survey  of  the  lot,  and  of  an  actual  survey  thereof  accordingly, 
it  was  held,  that  the  jury  were  properly  instructed  to  presume 
that  a  patent  had  been  duly  issued.^  In  regard,  however,  to 
crown  or  public  grants,  a  longer  lapse  of  time  has  generally  been 
deemed  necessary,  in  order  to  justify  this  presumption,  than  is 
considered  sufficient  to  authorize  the  like  presumption  in  the  case 
of  grants  from  private  persons. 

§  46.  Conveyances.  Juries  are  also  often  instructed  or  advised, 
in  more  or  less  forcible  terms,  to  presume  conveyances  between  pri- 
vate individuals,  in  favor  of  the  party  who  has  proved  a  right  to  the 
beneficial  enjoyment  of  the  property,  and  whose  possession  is  con- 
sistent with  the  existence  of  such  conveyance,  as  is  to  be  presumed ; 
especially  if  the  possession,  without  such  conveyance,  would  have 
been  unlawful,  or  cannot  be  satisfactorily  explained.^  This  is 
done  in  order  to  prevent  an  apparently  just  title  fi'om  being  de- 
feated by  matter  of  mere  form.  Thus,  Lord  Mansfield  declared 
that  he  and  some  of  the  other  judges  had  resolved  never  to  suffer 
a  plaintiff  in  ejectment  to  be  nonsuited  by  a  term,  outstanding  in 
his  own  trustees,  nor  a  satisfied  term  to  be  set  up  by  a  mortgagor 
against  a  mortgagee  ;  but  that  they  would  direct  the  jury  to  pre- 
sume it  surrendered.^  Lord  Kenyon  also  said,  that  in  all  cases 
where  trustees  ought  to  convey  to  the  beneficial  owner,  he  would 
leave  it  to  the  jury  to  presume,  where  such  presumption  could 
reasonably  be  made,  that  they  had  conveyed  accordingly.*    After 

1  Jackson  v.  McCall,  10  Johns.  377.  wanting  some  collateral  matter,  neces- 
"  Si  probet  possessionem  excedentem  me-  sary  to  make  it  complete  in  point  of 
moriam  hominum,  habet  vim  tituli  et  form.  In  such  case,  where  the  posses- 
privilegii,  etiam  a  Principe.  Et  haec  est  sion  is  shown  to  have  been  consistent 
differentia  inter  possessionem  xxx.  vel.  witli  the  fact  directed  to  be  presumed, 
xl.  annorum,  et  non  raemorabilis  tem-  and  in  such  cases  only,  has  it  ever  been 
poris ;  quia  per  illam  acquiritur  non  di-  allowed."  And  he  cites  as  examples, 
rectum,  sed  utile  dominium;  per  istam  Lade  v.  Holford,  Bull.  N.  P.  110;  Eng- 
autem  directum."  Mascard.  De  Probat.  land  v.  Slade,  4  T.  K.  682 ;  Doe  v.  Sy- 
vol.  i.  p.  2.39,  Concl.  199,  n.  11,  12.  [So  bourn,  7  T.  R.  2;  Doe  v.  Hilder,  2  B.  & 
e  series  of  acts  of  ownership  of  a  portion  Aid.  782 ;  Doe  v.  Wrighte,  Id.  710.  See 
of  the  sea-shore  may  authorize  a  jury  to  Best  on  Presumptions,  pp.  144-169. 

find  a  grant  from  the  crown.     Calmady  ^  Lade  v.  Holford,  Bull.  N.  P.  110. 

V.  Rowe,  6  C.  B.  861.     So  also  Beaufort  <  Doe  v.  Sybourn,  7  T.  R.  2;  Doe  v. 

V.  Swan,  3  Ex.  413;  Healy  v.  Thome,  1  Staples,  2  T.  R.696.     The  subject  of  the 

L  R.  C.  L.  495.]  presumed  surrender  of  terms  is  treated 

2  The  rule  on  this  subject  was  stated  at  large  in  Mathews  on  Presumpt.  Evid. 
by  Tindal,  C  J.,  in  Doe  v.  Cooke,  6  Bing.  c.  13,  p.  226-250,  and  is  ably  expounded 
174, 179.  "  No  case  can  be  put,"  says  he,  by  Sir  Edw.  Sugden,  in  his  Treatise  on 
"in  which  any  presumption  has  been  Vendors  and  Purchasers  c.  15,  §  3,  vol. 
made,  except  where  a  title  has  been  iii.  pp.  24-67,  10th  ed.  See  also  Best 
shown,  by  the  party  who  calls  for  the  on  Presumptions,  §  113-122. 
presumption,   good    in    substance,   but 


66 


LAW   OF  EVIDENCE. 


[part  I. 


the  lapse  of  seventy  years,  the  jury  have  been  instructed  to  pre- 
sume a  grant  of  a  share  m  a  proprietary  of  lands,  from  acts  done 
by  the  supposed  grantee  in  that  capacity,  as  one  of  the  proprie- 
tors.^ The  same  presumption  has  been  advised  in  regard  to  the 
reconveyance  of  mortgages,  conveyances  from  old  to  new  trustees, 
mesne  assignments  of  leases,  and  any  other  species  of  document- 
ary evidence,  and  acts  in  j^ais^  which  is  necessary  for  the  support 
of  a  title  in  all  other  respects  evidently  just.^  It  is  sufficient  that 
the  party,  who  asks  for  the  aid  of  this  presumption,  has  proved  a 
title  to  the  beneficial  ownership,  and  a  long  possession  not  incon- 
sistent therewith ;  and  has  made  it  not  unreasonable  to  believe 
that  the  deed  of  conveyance,  or  other  act  essential  to  the  title, 
was  duly  executed.  Where  these  merits  are  wanting,  the  jury 
are  not  advised  to  make  the  presumption.^ 

§  47.  Personalty.  The  same  principle  is  applied  to  matters  be- 
longing to  the  jjersonalty.  Thus,  where  one  town,  after  being  set  off 
from  another,  had  continued  for  fifty  years  to  contribute  annually 
to  the  expense  of  maintaining  a  bridge  in  the  parent  town,  this  was 


1  Farrar  v.  Merrill,  1  Greenl.  17.  A 
by-law  may,  in  like  manner,  be  presumed. 
Bull.  N.  P.  211.  The  case  of  Corpora- 
tions, 4  Co.  78;  Cowp.  110. 

2  Emery  v.  Grocock,  6  Madd.  54 ; 
Cooke  V.  Soltan,2  Sim.  &  Stu.  154;  Wil- 
son V.  Allen,  1  Jac.  &  W.  Oil,  620;  Roe 
V.  Reade,  8  T.  R.  118,  122 ;  White  v.  Fol- 
jambe,  11  Ves.  350;  Keene  v.  Deardon, 
8  East,  248,  266 ;  Tenny  v.  Jones,  3  M.  & 
Scott,  472;  Rowe  v.  Lowe,  1  H.  Bl.  446, 
459;  Van  Dyck  v.  Van  Buren,  1  Caines, 
84;  Jackson  v.  Murray,  7  Johns.  5;  4 
Kent,  Comm.  90,  91  ;  Gray  v.  Gardiner,  3 
Mass.  399;  Knox  v.  Jenks,  7  Mass.  488; 
Society,  &c.  v.  Young,  2  N.  H.  310;  Col- 
man  V.  Anderson,  10  Mass  105  ;  Pejop- 
Bcot  Proprietors  v.  Ranson,  14  Mass.  145; 
Bergen  v.  Bennet,  1  Caines,  1 ;  Blos- 
som I'.  Cannon,  14  Mass.  177;  Battles  v. 
Holley,  6  Greenl.  145;  Lady  Dartmouth 
V.  Roi)erts,  16  East,  334,  339;  Livingston 
r.  Livingston,  4  Johns.  Ch.  287.  Whether 
deeds  of  conveyance  can  be  presumed,  in 
cases  where  the  law  has  made  provision 
for  their  registration,  has  been  doubted. 
Tlie  point  was  argued,  but  not  decided,  in 
Doe  V.  Hirst,  11  Price,  475.  And  see  24 
Pick.  322.  The  better  opinion  seems  to 
be  thatthougli  the  court  will  not,  in  such 
case,  presume  the  existence  of  a  deed  as 
a  mere  inference  of  law,  yet  the  fact  is 
open  for  the  jury  to  find,  as  in  otiier 
cases.     See  Rex  v.  Long  Buckby,  7  East, 


45;    Trials  per  Pais,  237;   Finch,  400; 
Valentine  v.  Piper,  22  Pick.  85,  93,  94. 

3  Dee  V.  Cooke,  6  Bing.  173,  per  Tin- 
dal,  C.  J. ;  Doe  v.  Reed,  5  B.  &  A.  232 ; 
Livett  V.  Wilson,  3  Bing.  115;  Schauber 
V.  Jackson,  2  Wend.  14,  37 ;  Hepburn  v. 
Auld,  5  Cranch,  262  ;  Valentine  v.  Piper, 
22  Pick.  85.  This  rule  has  been  applied 
to  possessions  of  divers  lengtlis  of  dura 
tion ;  as,  fifty-two  years,  Ryder  v.  Hatha- 
way, 21  Pick.  298;  fifty  years,  Melvin  v. 
Prop'rs  of  Locks,  &c.,  16  Pick.  137  ;  17 
Pick.  255,  s.c. ;  tliirty-three  years,  White 
V.  Loring,  24  Pick.  319  ;  thirty  years,  Mc- 
Nair  v.  Hunt,  5  Miss.  300;  twent\'-six 
years,  Newman  v.  Studley,  Id.  291 ;  twen- 
ty years,  Brattle-Square  Church  v.  Bul- 
lard,  2  ]\Iet.  363  ;  but  the  latter  period  is 
held  sufficient.  The  rule,  however,  does 
not  seem  to  depend  so  much  upon  the 
mere  lapse  of  a  definite  period  of  time  as 
upon  all  the  circumstances,  taken  togeth- 
er ;  the  question  being  exclusivel}'  for  the 
jury.  [See  also  Attorney-General  v.  Pro- 
prietors of  Meeting-liouse,  &c.,  3  Gray,  1, 
G2-65.  These  presumptions  for  the  qui- 
eting of  title  are  not  necessarily  re- 
stricted to  what  may  fairly  be  supposed 
to  have  in  fact  occurred ;  but,  ratiier,  what 
may  have  occurred,  and  seems  requisite 
to  quiet  the  title  in  the  possessor.  St. 
Mary's  College  v,  Attorney-General,  3 
Jur.  N.  8.  675.1 


CHAP.  IV.] 


PEESCTMPTIVE  EVIDENCE. 


57 


held  sufficient  to  justify  the  presumption  of  an  agreement  to  that 
effect.!  And,  in  general,  it  may  be  said  that  long  acquiescence 
in  any  adverse  claim  of  right  is  good  ground,  on  which  a  jury 
may  presimie  that  the  claim  had  a  legal  commencement ;  since  it 
is  contrary  to  general  experience  for  one  man  long  to  continue  to 
pay  money  to  another,  or  to  perform  any  onerous  duty,  or  to  sub- 
mit to  any  inconvenient  claim,  unless  in  pursuance  of  some  con- 
tract, or  other  legal  obligation. 

§  48.  Scope  of  this  class  of  presumptions.  In  fine,  this  class  of 
presumptions  embraces  all  the  connections  and  relations  between 
the  facts  proved  and  the  hypothesis  stated  and  defended,  whether 
they  are  mechanical  and  physical,  or  of  a  purely  moral  nature. 
It  is  that  which  prevails  in  the  ordinary  affairs  of  life,  namely, 
the  process  of  ascertaining  one  fact  from  the  existence  of  another, 
without  the  aid  of  any  rule  of  law ;  and,  therefore,  it  falls  within 
the  exclusive  province  of  the  jury,  who  are  bound  to  find  accord- 
ing to  the  truth,  even  in  cases  where  the  parties  and  the  court 
would  be  precluded  by  an  estoppel,  if  the  matter  were  so  pleaded. 
They  are  usually  aided  in  their  labors  by  the  advice  and  instruc- 
tions of  the  judge,  more  or  less  strongly  urged,  at  his  discretion  ; 
but  the  whole  matter  is  free  before  them,  unembarrassed  by 
any  considerations  of  policy  or  convenience,  and  unlimited  by 
any  boundaries  but  those  of  truth,  to  be  decided  by  themselves, 
according  to  the  convictions  of  their  own  understanding.^ 


1  Cambridge  v.  Lexington,  17  Pick. 
222.  See  also  Grote  v.  Grote,  10  Johns. 
402  ;  Schauber  v.  Jackson,  2  "Wend.  36, 
37. 

2  [The  working  accuracy  of  scientific 
instruments,  clocks,  thermometers,  gas- 
meters,  and  the  like,  will  also  be  presumed 
in  the  absence  of  evidence  to  tlie  con- 
trary. Taylor,  Ev.,  §  148,  A.  Where  a 
number  of  cows  belonging  to  different 
individuals  break  into  an  enclosure,  each 
will  be  presumed  to  have  done  equal 
damage  in  the  absence  of  evidence  to 
the  contrary.  Partenheimer  i;.  Van  Order, 


20  Barb.  (N.  Y.)  497.  But  where  damage 
may  be  the  result  of  either  one  of  two 
different  causes,  there  is  no  presumption 
against  either.  Priest  v.  Nichols,  116 
Mass.  401.  And  where  a  parcel  of  goods, 
after  having  passed  through  the  hands 
of  various  carriers,  is  found  to  have 
been  opened  and  a  part  of  the  goods 
stolen,  the  jury  may  presume,  in  the  ab- 
sence of  evidence  to  the  contrary,  that 
the  loss  was  through  the  fault  of  the  last 
carrier.  Laughlin  v.  Ch.  &  N.  W.  R.  R, 
Co.,  28  Wis.  204 ;  Smith  v.  N.  Y.  C.  R.  R. 
Co.,  43  Barb.  (N.  Y.)  225.1 


PART    11. 

OF  THE  EULES  WHICH  GOVERN   THE  PRODUC- 
TION  OF   TESTIMONY. 


PAET    II. 

OF  THE  RULES  WHICH  GOVERN  THE  PRODUCTION 
OF   TESTBIOXY. 


CHAPTER   I. 


OP  THE  RELEVANCY  OF  EVIDENCE. 


§  49.  Functions  of  judge  and  jury.  In  trials  of  fact,  without 
tli6  aid  of  a  jury,  the  question  of  the  admissibility  of  evidence, 
strictly  speaking,  can  seldom  be  raised;  since,  whatever  be  the 
ground  of  objection,  the  evidence  objected  to  must,  of  necessity, 
be  read  or  heard  by  the  judge,  in  order  to  determine  its  character 
and  value.  In  such  cases,  the  only  question,  in  effect,  is  upon 
the  sufficiency  and  weight  of  the  evidence.  But  in  trials  by  jury, 
it  is  the  province  of  the  presiding  judge  to  determine  all  ques- 
tions on  the  admissibility  of  evidence  to  the  jury ;  as  well  as  to 
instruct  them  in  the  rules  of  law,  by  which  it  is  to  be  weighed. 
Whether  there  be  any  evidence  or  not  is  a  question  for  the  judge  ; 
/  whether  it  is  sufficient  evidence  is  a  question  for  the  jury.^     If 


1  Per  BuUer,  J.,  in  Carpenter  v.  Hay- 
ward,  Doug.  374.  And  see  Best's  Prin- 
ciples of  Evidence,  §§  76-86.  [And 
Chandler  v.  Von  Roeder,  24  How.  U.  S. 
224.  Relevancy  to  the  issue  is  the  test 
of  admissibility.  With  the  weight  of 
evidence  the  judge  cannot  concern  him- 
self, except  in  certain  cases,  where  the 
testimonj'  comes  from  tainted  sources,  as 
in  the  case  of  accomplices  and  false  wit- 
nesses, Mhere  he  may  caution  against, 
but  cannot  exclude.  Underwood  v.  Mc- 
Veigh, 23  Gratt.  (Va.)  409;  Paulette  v. 
Brown,  40  Mo.  52;  Callahan  v.  Shaw,  24 
Iowa,  441 ;  ^lead  v.  McGraw,  19  Ohio, 
55 ;  Blanchard  v.  Pratt,  37  111.  243.  And 
see  also  post,  §  380.  In  United  States  v. 
Anthony,  U.  S.  Dist.  Ct.  North  N.  Y., 
Mr.  Justice  Hunt  directed  the  jury,  upon 
the  evidence,  to  return  a  verdict  of  guilty, 
every  fact  in  the  case  being  undisputed, 
—  a  direction  the  propriety  of  which  is 
by  no  means  conceded.    See  Alb.  L.  J.  10, 


33,  78 ;  Green's  Cr.  Law  R.,  vol.  ii.  p.  226, 
n.]  The  notion  that  the  jury  have  the 
right,  in  any  case,  to  determine  questions 
of  law,  was  strongly  denied,  and  their 
province  defined,  by  Story,  J.,  in  the 
United  States  v.  Battiste,  2  Sumn.  243. 
"  Before  I  proceed,"  said  he,  to  the  mer- 
its of  this  case,  I  wish  to  say  a  few  words 
upon  a  point,  suggested  by  the  argument 
of  the  learned  counsel  for  the  prisoner, 
upon  which  I  have  had  a  decided  opinion 
during  my  whole  professional  life.  It 
is,  that  in  criminal  cases,  and  especially 
in  capital  cases,  the  jury  are  the  judges 
of  the  law  as  well  as  of  the  fact.  My 
opinion  is,  that  the  jury  are  no  more 
judges  of  the  law  in  a  capital  or  other 
criminal  case,  upon  a  plea  of  not  guilty, 
than  they  are  in  every  civil  case  tried 
upon  the  general  issue.  In  each  of  these 
cases,  their  verdict,  when  general,  is 
necessarily  compounded  of  law  and  of 
fact,  and  includes  both.    In  each  they 


62 


LAW   OF  EVIDENCE. 


[PAET  n. 


the  decision  of  the  question  of  admissibility  depends  on  the  deci- 
sion of  other  questions  of  fact,  such  as  the  fact  of  interest,  for 


must  necessarily  determine  the  law,  as 
well  as  the  fact.  In  eacli  they  have  the 
physical  power  to  disregard  the  law,  as 
laid  down  to  them  by  the  court.  But  I 
deny  that,  in  any  case,  civil  or  criminal, 
they  have  the  moral  right  to  decide  the 
law  according  to  their  own  notions  or 
pleasure.  On  the  contrary,  I  liold  it  the 
most  sacred  constitutional  right  of  every 
party  accused  of  a  crime,  that  the  jury 
should  respond  as  to  the  facts,  and  the 
court  as  to  the  law.  It  is  the  duty  of 
the  court  to  instruct  the  jury  as  to  the 
law ;  and  it  is  the  duty  of  the  jury  to 
follow  the  law,  as  it  is  laid  down  by  the 
court.  This  is  the  right  of  every  citizen ; 
and  it  is  his  only  protection.  If  the  jury 
were  at  liberty  to  settle  tlie  law  for 
themselves,  the  effect  would  be,  not  only 
that  the  law  itself  would  be  most  uncer- 
tain, from  the  different  views  which  dif- 
ferent juries  might  take  of  it;  but,  in 
case  of  error,  there  would  be  no  remedy 
or  redress  by  the  injured  party;  for  the 
court  would  not  have  any  right  to  review 
the  law,  as  it  had  been  settled  by  the 
jury.  Indeed,  it  woidd  be  almost  im- 
practicable to  ascertain  what  the  law,  as 
settled  by  the  jury,  actually  was.  On 
the  contrary,  if  the  court  should  err,  in 
laying  down  the  law  to  the  jury,  there 
is  an  adequate  remedy  for  the  injured 
party,  by  a  motion  for  a  new  trial,  or  a 
writ  of  error,  as  the  nature  of  the  juris- 
diction of  the  particular  court  may  re- 
quire. Every  person  accused  as  a  crim- 
inal has  a  right  to  be  tried  according  to 
the  law  of  the  land,  the  fixed  law  of  the 
l.-ind,  and  not  by  the  law  as  a  jury  may 
understand  it,  or  choose,  from  wanton- 
ness or  ignorance,  or  accidental  mistake, 
to  interpret  it.  If  I  thought  that  the 
jury  were  the  proper  judges  of  the  law 
in  criminal  cases,  I  should  hold  it  my 
duty  to  abstain  from  the  responsibility 
of  stating  the  law  to  them  upon  any  such 
trial.  But  believing,  as  I  do,  that  ever}-- 
citizen  lias  a  riglit  to  be  tried  by  the  law, 
and  according  to  the  law ;  that  it  is  his 
privilege  and  truest  shield  against  op- 
pression and  wrong,  —  I  feel  it  my  duty 
to  state  my  views  fully  and  openly  on  the 
present  occasion."  The  same  opinion  as 
to  the  province  of  the  jury  was  strongly 
expressed  by  Lord  C.  J.  Best,  in  Levi  v. 
Mylne,  4  Bing.  105. 

The  same  subject  was  more  fully  con- 
sidered in  Tiic  Commonwealth  v.  Porter, 
10  Met.  2(j.'5,  wliicli  was  an  indictment 
for  selling  into.xicating  liquors  without 


license.  At  the  trial  the  defendant's 
counsel,  being  about  to  argue  the  ques- 
tions of  law  to  the  jury,  was  stopped  by 
the  judge,  who  ruled,  and  so  instructed  the 
jury,  that  it  was  their  duty  to  receive 
the  law  from  tlie  court,  and  implicitl}'  to 
follow  its  direction  upon  matters  of  law. 
Exceptions  being  taken  to  tliis  ruling  of 
the  judge,  the  point  was  elaborately  ar- 
gued in  bank,  and  fully  considered  by 
the  court,  whose  judgment,  delivered  by 
Shaw,  C.  J.,  concluded  as  follows  :  "  On 
the  whole  subject,  the  views  of  the  court 
may  be  summarily  expressed  in  the  fol- 
lowing propositions  :  That,  in  all  criminal 
cases,  it  is  competent  for  tlie  jury,  if 
they  see  fit,  to  decide  upon  all  questions 
of  fact  embraced  in  the  issue,  and  to  re- 
fer the  law  arising  thereon  to  the  court, 
in  the  form  of  a  special  verdict.  But  it 
is  optional  with  the  jury  thus  to  return 
a  special  verdict  or  not,  and  it  is  within 
their  legitimate  province  and  power  to 
return  a  general  verdict,  if  they  see  fit. 
In  thus  rendering  a  general  verdict,  the 
jury  must  necessarily  pass  ugon  the' 
whole  issue,  compounded  of  the  law  and 
of  the  fact,  and  i\\cy  may  thus  incident- 
ally pass  on  questions  of  law.  In  form- 
ing and  returning  such  general  verdict, 
it  is  within  the  legitimate  authority  and 
power  of  the  jury  to  decide  definitively 
upon  all  questions  of  fact  involved  in 
the  issue,  according  to  their  judgment, 
upon  the  force  and  effect  of  the  compe- 
tent evidence  laid  before  them ;  and  if, 
in  the  progress  of  the  trial,  or  in  the 
summing-up  and  charge  to  the  jury,  the 
court  should  express  or  intimate  any 
opinion  upon  any  such  question  of  fact, 
it  is  within  the  legitimate  province  of 
the  jury  to  revise,  reconsider,  and  de- 
cide contrary  to  such  opinion,  if,  in  their 
judgment,  it  is  not  correct,  and  warranted 
by  the  evidence.  But  it  is  the  duty  of 
tlie  court  to  instruct  the  jury  on  all  ques- 
tions of  law  which  appear  to  arise  in  tiie 
cause,  and  also  upon  all  questions  per- 
tinent to  the  issue,  upon  whicli  either 
party  may  request  the  direction  of  tiie 
court  upon  matters  of  law.  And  it  is 
the  duty  of  the  jury  to  receive  the  law 
from  the  court,  and  conform  their  judg- 
ment and  decision  to  such  instructions, 
as  far  as  they  understand  tliem,  in  ap- 
plying the  law  to  the  facts  to  be  found 
by  them;  and  it  is  not  within  the  legiti- 
mate province  of  the  jury  to  revise,  re- 
consider, or  decide  contrary  to  such 
opinion  or  direction  of  the  court  in  mat- 


CHAP.  I.] 


THE  EELEVA2TCY  OF  EVIDENCE. 


example,  or  of  the  execution  of  a  deed,  these  preliminary  ques- 
tions of  fact  are,  in  the  first  instance,  to  be  tried  by  the  judge ; 


ter  of  law.  To  this  duty  jurors  are 
bound  by  a  strong  social  <ind  moral 
obligation,  enforced  by  the  sanction  of 
an  oath,  to  the  same  extent  and  in  the 
same  manner  as  they  are  conscientiously 
bound  to  decide  all  questions  of  fact  ac- 
cording to  the  evidence.  It  is  no  valid 
objection  to  this  view  of  the  duties  of 
jurors,  that  they  are  not  amenable  to 
any  legal  prosecution  for  a  wrong  de- 
cision in  any  matter  of  law ;  it  may  arise 
from  an  honest  mistake  of  judgment,  in 
their  apprehension  of  the  rules  and  prin- 
ciples of  law,  as  laid  down  by  the  court, 
especially  in  perplexed  and  complicated 
cases,  or  from  a  mistake  of  judgment  in 
applying  them  honestly  to  the  facts 
proved.  The  same  reason  applies  to  the 
decisions  of  juries  upon  questions  of  fact 
clearly  within  their  legitimate  powers ; 
they  are  not  punishable  for  deciding 
wrong.  The  law  vests  in  them  the 
power  to  judge,  and  it  will  presume  that 
they  judge  honestly,  even  though  tliere 
may  be  reason  to  apprehend  that  they 
judge  erroneously;  they  cannot,  there- 
fore, be  held  responsible  for  any  such 
decision,  unless  upon  evidence  which 
clearly  establishes  proof  of  corruption, 
or  other  wilful  violation  of  duty.  It 
is  within  the  legitimate  power,  and  is 
the  duty,  of  the  court  to  superintend  the 
course  of  the  trial ;  to  decide  upon  tlie 
admission  and  rejection  of  evidence  ;  to 
decide  upon  the  use  of  any  books,  pa- 
pers, documents,  cases,  or  works  of  sup- 
posed authority,  which  may  be  offered 
upon  either  side ;  to  decide  upon  all  col- 
lateral and  incidental  proceedings  ;  and 
to  confine  parties  and  counsel  to  the 
matters  within  the  issue.  As  the  jury 
have  a  legitimate  power  to  return  a  gen- 
eral verdict,  and  in  that  case  must  pass 
upon  the  whole  issue,  this  court  are  of 
opinion  that  tlie  defendant  has  a  right, 
by  himself  or  his  counsel,  to  address  the 
jiiry,  under  the  general  superintendence 
of  the  court,  upon  all  the  material  ques- 
tions involved  in  the  issue,  and  to  this 
extent,  and  in  this  connection,  to  address 
the  jury  upon  such  questions  of  law  as 
come  within  the  issue  to  be  tried.  Such 
address  to  the  jury,  upon  questions  of 
law  embraced  in  the  issue,  by  the  de- 
fendant or  his  counsel,  is  warranted  by 
the  long  practice  of  the  courts  in  this 
Commonwealth  in  criminal  cases,  in 
which  it  is  within  the  established  au- 
thority of  a  jury,  if  they  see  fit,  to  re- 
turn a  general   verdict,  embracing  the 


entire  issue  of  law  and  fact."  10  Mete. 
285-287.  See  also  the  opinion  of  Lord 
Mansfield  to  the  same  etfect,  in  Rex  v. 
The  Dean  of  St.  Asaph,  21  How.  St.  Tr. 
1039,  1040;  and  of  Mr.  Hargrave,  in  his 
note,  276,  to  Co.  Lit.  155,  where  the  ear- 
lier authorities  are  cited.  The  whole 
subject,  with  particular  reference  to 
criminal  cases,  was  reviewed  with  great 
learning  and  ability  by  Gilchrist,  J.,  and 
again  by  Parker,  C.  J.,  in  Pierce's  case, 
1.3  N.  H.  536,  where  the  right  of  the 
jury  to  judge  of  the  law  was  denied;  re- 
cently affirmed  in  a  A'ery  elaborate  opin- 
ion by  Doe,  J.,  in  State  v.  Hodge,  50  N.  H. 
510.  And  see,  accordingly.  The  People 
V.  Price,  2  Barb.  S.  C.  566  ;  Townsend  v. 
The  State,  2  Blackf .  152 ;  Davenport  v. 
The  Commonwealth,  1  Leigh,  588  ;  Com- 
monwealth V.  Garth,  3  Leigii,  761 ;  Mon- 
tee  V.  The  Commonwealth,  3  J.  J.  Marsh. 
1.50 ;  Pennsylvania  r.  Bell,  Addis.  160, 
161  ;  Commonwealth  v.  Abbott,  13  Mete. 
123,  124  ;  Hardy  v.  The  State,  7  Mo.  607 ; 
Snow's  case,  6  Shepl.  340,  semb.  contra. 
[In  State  v.  Croteau,  23  Vt.  (8  Washb.) 
14,  the  Supreme  Court  of  Vermont,  Ben- 
nett, J.,  dissenting,  decided  that  in  crim- 
inal cases  the  jury  has  the  right  to  deter- 
mine the  whole  matter  in  issue,  the  law 
as  well  as  the  fact ;  and  the  same  rule  is 
established  in  several  other  States.  The 
legislature  of  Massachusetts,  in  1855 
(Acts,  1855,  c.  152),  enacted,  "that,  in 
all  trials  for  criminal  offences,  it  shall  be 
the  duty  of  the  jury  to  try,  according  to 
established  forms  and  principles  of  law, 
all  causes  which  shall  be  committed  to 
them,  and,  after  having  received  the  in- 
structions of  the  court,  to  decide  at  their 
discretion,  by  a  general  verdict,  both 
the  fact  and  law  involved  in  the  issue, 
or  to  find  a  special  verdict  at  their  elec« 
tion ;  but  it  shall  be  the  duty  of  the 
court  to  superintend  the  course  of  the 
trials,  to  decide  upon  the  admission  and 
rejection  of  evidence,  and  upon  all  ques- 
tions of  law  raised  during  the  trials,  and 
upon  all  collateral  and  incidental  pro- 
ceedings, and  also  to  charge  the  jury 
and  to  allow  bills  of  exception,  and  the 
court  may  grant  a  new  trial  in  cases  of 
conviction."  This  act  has  been  before 
the  Supreme  Judicial  Court,  for  exposi- 
tion and  construction  upon  exceptions 
taken  to  the  ruling  of  the  court  below 
in  the  trial  of  an  indictment  against  a 
defendant  for  being  a  common  seller  of 
intoxicating  liquors,  and  the  court  has 
decided,  as  appears  by  a  note  of  their 


64 


LAW   OF  EVIDENCE. 


[PAET  n. 


though  he  may,  at  his  discretion,  take  the  opinion  of  the  jury 
upon  them.  But  where  the  question  is  mixed,  consisting  of  law 
and  fact,  so  intimately  blended  as  not  to  be  easily  suscej^tible  of 
separate  decision,  it  is  submitted  to  the  jury,  who  are  first  in- 


decision in  the  Monthly  Law  Reporter 
for  September,  1857  (Commonwealth  v. 
Anthes,  20  L.  R.  298),  as  follows  :  "  Upon 
the  question  whether  this  statute  pur- 
ports to  change  the  law  as  already  ex- 
isting and  recognized  in  Commonwealth 
V.  Porter,  10  Mete.  263,  the  court  were 
equally  divided.  But  by  a  majority  of 
the  court  it  was  held,  that,  if  such  change 
of  the  law  is  contemplated  by  the  stat- 
ute, the  same  is  void."  s.  c.  6  Gray, 
185.  See  also  State  v.  McDonnell,  82  Vt. 
531-553.] 

The  application  of  this  doctrine  to 
particular  cases,  though  generally  uni- 
form, is  not  perfectly  so  where  the  ques- 
tion is  a  mixed  one  of  law  and  fact. 
Thus  the  question  of  probable  cause  be- 
longs to  the  court ;  but  where  it  is  a 
mixed  question  of  law  and  fact  inti- 
mately blended,  as,  for  example,  where 
the  party's  belief  is  a  material  element 
in  the  question,  it  has  been  held  right  to 
leave  it  to  the  jury,  with  proper  instruc- 
tions as  to  the  law.    McDonald  v.  Rooke, 

2  Bing.  N.  C.  217;  Haddrick  v.  Raine, 
12  Ad.  &  El.  N.  s.  267.  And  see  Taylor 
V.  Willans,  2  B.  &  Ad.  845 ;  6  Bing.  183 
[Panton  v.  Williams,  2  Q.  B.  192;  Turner 
r.  Ambler,  10  Id.  252 ;  West  v.  Baxendale, 
9  C.  B.  Ul ;  Lister  v.  Perryman,  i  L.  R. 
H.  of  L.  521] ;  post,  vol.  ii.  §  4-54.  The 
judge  has  a  right  to  act  upon  all  the  un- 
contradicted facts  of  the  case ;  but  where 
the  credibility  of  witnesses  is  in  question, 
or  some  material  fact  is  in  doubt,  or  some 
inference  is  attempted  to  be  drawn  from 
some  fact  not  distinctly  sworn  to,  the 
judge  ought  to  submit  the  question  to 
the  jury.  Mitchel  v.  Williams,  11  M.  & 
W.  216,  217,  per  Alderson,  B. 

In  trespass  tie  bonis  asportatis,  the  bona 
Jidis  of  the  defendant  in  taking  the 
goods,  and  the  reasonableness  of  his  be- 
lief that  he  was  executing  his  duty,  and 
of  his  suspicion  of  the  plaintiff,  are  ques- 
tions for  the  jury.  Wedge  v.  Berkeley, 
G  Ad.  &  El.  063;    Ilazeldine    v.  Grove, 

3  Ad.  &  El.  X.  s.  997;  Hughes  v.  Buck- 
land,  15  M.  &  W.  346.  In  a  question  of 
pediijree,  it  is  for  the  judge  to  decide 
whether  the  person  whose  declarations 
are  offered  in  evidence  was  a  member  of 
the  family,  or  so  related  as  to  be  entitled 
to  be  heard  on  such  a  question.  Doe  v. 
Davies,  11  Jur.  6U7;  10  Ad.  &  El.  n.  s. 
814. 

The  question,  what  are  M.«i<a/  covenants 


in  a  deed,  is  a  question  for  the  jury,  and 
not  a  matter  of  construction  for  the  court. 
Bennett  v.  Womack,  3  C.  &  P.  96. 

In  regard  to  reasonableness  of  time, 
care,  skill,  and  the  like,  there  seems  to 
have  been  some  diversity  in  the  applica- 
tion of  the  principle  ;  but  it  is  conceded 
that,  "  whether  there  has  been,  in  any  par- 
ticular case,  reasonable  diligence  used,  or 
whether  unreasonable  delay  has  occur- 
red, is  a  mixed  question  of  law  and  fact, 
to  be  decided  by  the  jury,  acting  under 
the  direction  of  the  judge,  upon  the  par- 
ticular circumstances  of  each  case."  Mel- 
lish  V.  Hawdon,  9  Bing.  410,  per  Tindall, 
C.  J. ;  Nelson  v.  Patrick,  2  Car.  &  K.  Gil, 
per  Wilde,  C.  J.  The  judge  is  to  inform 
the  jury  as  to  the  degree  of  diligence,  or 
care  or  skill  which  the  law  demands  of 
the  party,  and  what  duty  it  devolves  on 
him,  and  the  jury  are  to  find  whether 
that  duty  has  been  done.  Hunter  v.  Cald- 
well, 11  Jur.  770;  10  Ad.  &  El.  x.  s.  69; 
Burton  v.  Griffiths,  11  M.  &  W.  817; 
Eacey  v.  Hurdom,  3  B.  &  C.  213  ;  Stew- 
art V.  Cautv,  8  M.  &  W.  160;  Parker  v. 
Palmer,  4  B.  &  Al.l.  387 ;  Pitt  v.  Shew, 
Id.  206;  Mount  v.  Larkins,  8  Bing.  108; 
Phillips  V.  Irving,  7  M.  &  Gr.  325 ;  Keece 
V.  Rigby,  4  B.  &  Aid.  202.  But  where 
the  duty  in  regard  to  time  is  established 
by  uniform  usage,  and  the  rule  is  well 
known;  as  in  the  case  of  notice  of  the 
dishonor  of  a  bill  or  note,  where  the  ])ar- 
ties  live  in  the  same  town  ;  or  of  the  duty 
of  sending  such  notice  by  the  next  post, 
packet,  or  other  siup ;  or  of  the  reasona- 
ble hours  or  business  hours  of  the  da_v, 
within  which  a  bill  is  to  be  i)rescnted,  or 
goods  to  be  delivered,  or  tlie  like, —  in 
such  cases,  the  time  of  the  fact  l>eing 
proved,  its  reasonableness  is  settled  by 
the  rule,  and  is  declared  b3'  the  judge. 
See  Story  on  Bills,  §§  231-234,  338,  349; 
post,  vol.  ii.  !5§  178,  179,  186-188  [Watson 
V.  Tarpley,  18  How.  (U.  S.)  517]. 

Whether  by  the  word  "month,"  in  a 
contract,  is  meant  a  calendar  or  lunar 
month,  is  a  question  of  law  ;  but  whether 
parties,  in  the  jiarticular  case,  intended 
to  use  it  in  the  one  .sense  or  the  other,  is 
a  question  for  the  jury,  upon  the  evidence 
of  circumstances  in  the  case.  Simpson 
V.  Margitson,  12  Jur.  155;  Lang  v.  Gale, 
1  M.  &  S.  Ill;  Hutchinson  v.  liowker,  5 
M.  &  W.  535;  Smith  v.  Wilson,  3  B.  & 
Ad.  728;  Jolly  r.  Young,  1  E.sp.  l&G; 
Walker  v.  Hunter,  2  M.  Gr.  &  Sc.  324. 


CHAP.  I.] 


THE  KELEYAXCY   OF   EVIDENCE. 


65 


structed  by  the  judge  in  the  principles  and  rides  of  haw  by  which 
they  are  to  be  governed  in  finding  a  verdict ;  and  these  instruc- 
tions they  are  bound  to  follow.^  If  the  genuineness  of  a  deed  is 
the  fact  in  question,  the  preliminary  proof  of  its  execution,  given 
before  the  judge,  does  not  relieve  the  party  offering  it  from  the 
necessity  of  proving  it  to  the  jury.^  The  judge  only  decides 
whether  there  is,  j^rhna  facie,  any  reason  for  sending  it  at  all  to 
the  jury .3 


1  1  Stark.  Evid.  510,  519-526;  Hutch- 
inson t".  Bowker,  5  M.  &  W.  535;  Wil- 
liams V.  Byrne,  2  N.  &  P.  139 ;  McDonald 
V.  Rooke,  2  Bing.  N.  C.  217 ;  James  i'. 
Phelps,  11  Ad.  &  El.  483 ;  s.  c.  3  P.  &  D. 
231 ;  Panton  v.  Williams.  2  Ad.  &  El.  n.  s. 
169;  Townsend  y.  The  State,  2  Blackf. 
151;  Montgomery  i'.  O'lio,  11  Ohio,  424. 
Questions  of  interpretation,  as  well  as  of 
construction  of  written  instruments,  are 
for  the  court  alone.  Infra,  §  277,  n.  (1). 
But  where  a  doubt  as  to  the  application 
of  the  descriptive  portion  of  a  deed  to 
external  objects  arises  from  a  latent  am- 
biguity, and  is  therefore  to  be  solved  by 
parol  evidence,  the  question  of  intention 
is  necessarily  to  be  determined  by  the 
jury.  Reed  v.  Proprietors  of  Locks,  &c., 
8  How.  S.  C.  274  [Savignac  v.  Garrison, 
18  lb.  136]. 

2  Ross  V.  Gould,  5  Greenl.  204. 

3  The  subject  of  the  functions  of  the 
judge,  as  distinguished  from  those  of  the 
jury,  is  fully  and  ably  treated  in  an  ar- 
ticle in  the  Law  Review,  No.  3,  for  May, 
1845,  p.  27-44.  [It  is  the  province  of 
the  judge  who  presides  at  the  trial  to 
decide  all  questions  on  the  admissibility 
of  evidence.  It  is  also  his  province  to 
decide  any  preliminary  questions  of  fact, 
however  intricate,  the  solution  of  wiiich 
may  be  necessary  to  enable  him  to  deter- 
mine the  other  question  of  admissibility. 
And  his  decision  is  conclusive,  unless  he 
saves  the  question  for  revision  bj'  the 
full  court,  on  a  report  of  the  evidence, 
or  counsel  bring  up  the  question  on  a 
bill  of  exceptions  which  contains  a  state- 
ment of  the  evidence.  Gorton  v.  Had- 
sell,  9  Cush.  511 ;  State  v.  Pike,  49  N.  H. 
398;  Bartlett  v.  Smith,  11  ^lees.  &  Wcls. 
483.  Tims  the  question  whether  the  ap- 
plication to  a  justice  of  the  peace,  under 
a  statute,  to  call  a  meeting  of  the  pro- 
prietors of  a  meeting-house,  was  signed 
by  five  at  least  of  such  proprietors,  as 
preliminaiy  to  the  question  of  the  ad- 
missibility of  tl)e  records  of  such  meet- 
ing, is  for  the  judge,  and  not  for  the  jury. 
Gorton  v.  Hadseil,  ubi  supra.  Where  the 
admissibility  of  evidence  depends  upon 

VOL.    I. 


the  existence  of  any  preliminar}'  fact  or 
condition,  it  is  for  the  judge  to  decide 
whether  the  fact  or  condition  exists,  as 
whether  the  witness  is  an  expert.  Com. 
V.  Williams,  105  Mass.  62 ;  or  a  dying  dec- 
larant entertained  hope  of  recovery.  State 
i;.  Tilghman,  11  Ired.  (N.  C.)  Law,  513; 
Rex  1-.  Hunter,  1  Stark.  523;  or  whether 
the  writing  to  be  used  as  a  test  in  com- 
parison of  handwritings  is  sufficiently 
proved.  Com.  v.  Coe,  115  Mass.  481;  or 
a  witness  has  sufficient  mental  capacity 
to  be  admissible,  Coleman  v.  Com.  Sup. 
Ct.  Va.  2  Am.  Law  Times,  n.  s.  390; 
and  what  subjects  an  expert  may  testify 
upon,  Jones  r.  Tucker,  41  N.  H.  546 ; 
whether  certain  declarations  were  so  far 
part  of  the  res  qt-stce  as  to  be  admissible, 
State  V.  Pike,  5l  N.  H.  105;  and  whether 
possession  of  stolen  property  is  suffi- 
ciently recent  to  afford  the  presumption 
that  it  was  stolen  by  the  possessor, 
State  V.  Hodge,  50  N.  H.  510.  Other  in- 
stances :  Whether  a  confession  is  induced 
by  threats,  Rex  v.  Hucks,  1  Stark.  523 ; 
whether  a  witness  is  unable  to  attend  as 
preliminary  to  the  admission  of  his  dep- 
osition, Beaufort  v.  Crawshay,  1  L.  R. 
C.  P.  699 ;  or  is  absent  from  collusion, 
Egan  V.  Larkin,  1  Arms.  M.  &  O.  403 ;  or 
a  document  has  been  dulj'  executed  or 
stamped,  Bartlett  v.  Smith,  11  M.  &  W. 
483;  or  comes  from  the  proper  custod}^, 
Doe  V.  Keeling,  11  Q.  B.  889;  or  be  the 
original  paper  required,  Froude  v.  Hobbs, 
1  Fost.  &  Fin.  612;  or  sufficient  search 
has  been  made  to  warrant  the  introduc- 
tion of  secondary  evidence,  Bartlett  v. 
Smith,  7ibi  sup.,  and  generallj'  all  other 
incidental  questions  bearing  upon  the 
admissibility  of  the  evidence  offered. 
Relevancy  and  admissibility  are  for  the 
judge,  credibility  and  weiglit  are  for  the 
jury.  The  construction  of  a  written 
document,  where  the  meaning  is  to  be 
gathered  from  the  document  itself,  is  for 
the  court.  But  where  the  meaning  can 
only  be  determined  hy  reference  to  ex- 
trinsic facts,  tiie  document  and  the  facts 
must  be  submitted  to  tiie  jurv.  Gibbs 
V.  Gilead,  Ecci.  Soc,  38  Coun.  153.     The 


66  LAW  OF  EVIDENCB.  [PAET  H. 

§  50.  General  rules  as  to  relevancy.  The  production  of  evidence 
to  the  jury  is  governed  by  certain  principles,  which  maybe  treated 
under  four  general  heads  or  rules.  The  first  of  these  is,  that  the 
evidence  must  corresj)ond  with  the  allegations^  and  be  confined  to 
the  point  in  issue.  The  second  is,  that  it  is  sufficient,  if  the  sub- 
stance only  of  the  issue  be  proved.  The  third  is,  that  the  burden 
of  proving  a  proposition,  or  issue,  lies  on  the  party  holding  the 
affirmative.  And  the  fourth  is,  that  the  best  evidence  of  which 
the  case,  in  its  nature,  is  susceptible,  must  always  be  produced. 
These  we  shall  now  consider  in  their  order. 

§  51.  First.  Allegations,  Issue.  The  pleadings  at  common  law 
are  composed  of  the  written  allegations  of  the  parties,  terminat- 
ing in  a  single  proposition,  distinctly  affirmed  on  one  side,  and 
denied  on  the  other,  called  the  issue.  If  it  is  a  proposition  of 
fact,  it  is  to  be  tried  by  the  jury,  upon  the  evidence  adduced. 
And  it  is  an  established  ride,  which  we  state  as  the  rmsT  eule, 
governing  in  the  production  of  evidence,  that  the  evidence  offered 
must  correspo7id  ivith  the  allegations.,  and  he  confined  to  the  point 
in  issue. ^  This  rule  supposes  the  allegations  to  be  material  and 
necessary.  Surplusage,  therefore,  need  not  be  proved ;  and  the 
proof,  if  offered,  is  to  be  rejected.  The  term  surplusage  compre- 
hends whatever  may  be  stricken  from  the  record,  without  de- 
stroying the  plaintiff's  right  of  action  ;  as  if,  for  example,  in  suing 
the  defendant  for  breach  of  warranty  upon  the  sale  of  goods,  he 
should  set  forth,  not  only  that  the  goods  were  not  such  as  the  de- 
fendant warranted  them  to  be,  but  that  the  defendant  well  knew 
that  they  were  not.^  But  it  is  not  every  immaterial  or  unneces- 
sary allegation  that  is  surplusage  ;  for  if  the  party,  in  stating  his 
title,  should  state  it  with  unnecessary  particularity,  he  must 
prove  it  as  alleged.  Thus,  if,  in  justifying  the  taking  of  cattle 
damage-feasant,  in  which  case  it  is  sufficient  to  allege  that  they 
were  doing  damage  in  his  freehold,  he  should  state  a  seisin  in  fee, 
which  is  traversed,  he  must  prove  the  seisin  in  fee  ;  ^  for  if  tliis 

lex  fori  determines  the  nature,  amount,  and  the  necessity  ^r  a  strict  adlierence 

and  mode  of  proof.     ^lostyn  i\  Faliri^as,  to  it,  are  well  cxjilained  and  illustrated 

1  Cowp.  174;   Bain  )•.  Whitehaven  R.  R.  in   Malcomson  v.  Clayton,  lo  Moore,  P. 

Co.,  3  11.  of  L.  100;  Yates  v.  Thompson,  C.  C.  11)8] 

3  C.  &  F.  677;  Brown  v.  Thornton,  6  Ad.  -  Williamson  v.  Allison,  2  East,  440; 

&  El.  185;   Downer  v.  Chessborough,  ^(3  Peppin  v.  Solomons,  5  T.  R.  49G;  IJrom- 

Conn.  38.     And   see   also  post,  vol.   iii.  field  i'.  Jones,  4  B.  &  C.  380. 
§  28.]  3  Sir  Francis  Leke's  case,  Dyer,  .305; 

1  See  Best's  Principles  of  Evidence,  2  Saund.  "lOCm,  n.  22;  Stc])hcn  on  Plead- 

§§  22y-24y.     [The  reason  for  this  rule,  ing,  201,  202;  Bristnw  v.  Wrigiit,  Doug. 


CHAP.  I.]  THE  RELEVAiTCY  OF  EVIDENCE.  67 

were  stricken  from  the  declaration,  the  phaintiffs  entire  title 
would  be  destroyed.  And  it  appears  that  in  determining  the 
question,  whether  a  particular  averment  can  be  rejected,  regard 
is  to  be  had  to  the  nature  of  the  averment  itself,  and  its  connec- 
tion with  the  substance  of  the  charge,  or  chain,  rather  than  to  its 
srrammatical  collocation  or  structure.^ 

§  51  a.  Evidence  must  tend  to  prove  issue.  It  is  not  necessary, 
however,  that  the  evidence  should  bear  directly  upon  the  issue. 
It  is  admissible  if  it  tends  to  prove  the  issue,  or  constitutes  a  link 
in  the  chain  of  proof  ;  although,  alone,  it  might  not  justify  a  ver- 
dict in  accordance  with  it.^  Nor  is  it  necessary  that  its  relevancy 
should  appear  at  the  time  when  it  is  offered ;  it  being  the  usual 
course  to  receive,  at  any  proper  and  convenient  stage  of  the  trial, 
in  the  discretion  of  the  judge,  any  evidence  which  the  counsel 
shows  will  be  rendered  material  by  other  evidence,  which  he  un- 
dertakes to  produce.  If  it  is  not  subsequently  thus  connected 
with  the  issue,  it  is  to  be  laid  out  of  the  case.^ 

§  52.  Collateral  facta  inadmissible.  This  rule  excludes  all  evi- 
dence of  collateral  facts,  or  those  which  are  incapable  of  affording 
any  reasonable  presumption  or  inference  as  to  the  principal  fact 
or  matter  in  dispute ;  and  the  reason  is,  that  such  evidence  tends 
to  draw  away  the  minds  of  the  jurors  from  the  point  in  issue,  and 
to  excite  prejudice,  and  mislead  them ;  and  moreover  the  adverse 
party,  having  had  no  notice  of  such  a  course  of  evidence,  is  not 
prepared  to  rebut  it.*  Thus,  where  the  question  between  land- 
lord and  'tenant  was,  whether  the  rent  was  payable  quarterly,  or 
half-yearly,  evidence   of   the  mode  in  which   other  tenants  of 

665 ;  Miles  i.  Sheward,  8  East,  7,  8,  9  ;  1  may  fairly  influence  the   belief  of  the 

Smith's  Leading  Cases,  328  n.  jury  as  to  the  whole  case.     Melhuish  i'. 

1  1  Stark.  Evid.  386.  Collier,  15  Ad.  &  El.  n.  s.  878. 

2  McAllister's  case,  11  Shepl.  139;  3  McAllister's  case,  s!//)m;  Van  Buren 
Haughey  v.  Strickler,  2  Watts  &  Serg.  r.  Wells,  19  Wend.  203;  Crenshaw  v. 
411;  Jones  y.  Vanzandt,  2  ^McLean,  596;  Davenport,  6  Ala.  390;  Tuzzle  v.  Bar- 
Lake  i;.  Mumford,  4  Sm.  &  Marsh.  312;  clay.  Id.  407;  Abney  v.  Kingsland,  10 
Belden  v.  Lamb,  17  C»nn..441.  [Tams  Ala.  3-55;  Yeatman  v.  Hart,  6  Humph. 
V.  Bullitt,  35  Penn.  St,  308;  Schuchardt  375  [Harris  v.  Holmes,  30  Vt.  352;  U.  S. 
r.  Aliens,  2  Wallace  (U.  S.),  359  ;  Tucker  v.  Flowery,  1  Sprague's  Dec.  109;  and  no 
V.  Peaslee,  36  N.  H.*jil67.]  Where  the  exception  lies  to  the  order  in  which-the 
plaintiff's  witness  aenied  the  existence  judge  admits  the  evidence.  Com.  v. 
of  a  material  fact,  and-^estified  that  per-  Davis,  107  Mass.  210]. 

sons  connected  with  tlie  plaintiff  had  *  Infra,  §  448.  But  counsel  may,  on 
offered  him  money  to  assert  its  exist-,  cross-examination,  inquire  as  to  a  fact 
ence,  the  •plaintiff  was  permitted,  not  apparently  irrelevant,  if  he  will  under- 
only  to  prove  the  fact,  but  to  disprove  take  afterwards  to  show  its  relevancy 
the  subornation,  on  the  ground  that  this  by  other  evidence.  Haigh  v.  Belcher,  7 
latter  fact  had  become  material  and  rel-  C.  &  P.  339. 
evant,  inasmuch  as  its  truth  or  falsehood 


68  LAW  OF  EVIDENCE.  [PART  H. 

the  same  landlord  paid  their  rent  was  held  inadmissible.^  And 
where,  in  covenant,  the  issue  was  whether  the  defendant,  who 
was  a  tenant  of  the  plaintiff,  had  committed  waste,  evidence  of 
bad  husbandry,  not  amounting  to  waste,  was  rejected.^  So,  where 
the  issue  was,  whether  the  tenant  had  permitted  the  premises  to 
be  out  of  repair,  evidence  of  voluntary  waste  was  held  irrelevaiit.^ 
This  rule  was  adhered  to,  even  in  the  cross-examination  of  wit- 
nesses ;  the  party  not  being  permitted,  as  will  be  shown  here- 
after,* to  ask  the  witness  a  question  in  regard  to  a  matter  not 
relevant  to  the  issue,  for  the  purpose  of  afterwards  contradicting 
him.^ 

§  53.  Exceptions.  In  some  cases,  however,  evidence  has  been 
received  of  facts  which  happened  before  or  after  the  principal 
transaction,  and  which  had  no  direct  or  apparent  connection  with 
it;  and  therefore  their  admission  might  seem,  at  first  view,  to 
constitute  an  exception  to  this  rule.  But  those  will  be  found  to 
have  been  cases,  in  which  the  hioivledge  or  intent  of  the  party 
was  a  material  fact,  on  which  the  evidence,  apparently  collateral, 
and  foreign  to  the  main  subject,  had  a  direct  bearing,  and  was 
therefore  admitted.  Thus,  when  the  question  was,  whether  the 
defendant,  being  the  acceptor  of  a  bill  of  exchange,  either  knew 
that  the  name  of  the  payee  was  fictitious,  or  else  had  given  a 
general  authority  to  the  drawer,  to  draw  bills  on  him  payable  to 
fictitious  persons,  evidence  was  admitted  to  show,  that  he  had 
accepted  other  bills,  drawn  in  like  manner,  before  it  was  possible 

1  Carter  v.  Pryke,  Peake's  Cas.  95.  an  action   a<rainst  a  physician  for  mal- 

iSee   also    Ilollnghani  v.  Head,  4  Com.  practice,  tlie  fact  tliat  lie  has  never  called 

5.  N.  8.  388.1  for  any  pay  for  the  service,  is  irrelevant. 

2  Harris  v.  Mantle,  3  T.  R.  307.  See  Baird  ")■.  Gillett,  47  N.  Y.  18G.  On  qucs- 
also  Balcetti  v.  Serani,  Peake's  Cas.  142;  tions  of  value,  the  value  of  other  like 
Furneaux  v.  Hutcliins,  Cowp.  807;  Doe  property  in  the  neighborhood,  and  sinii- 
V.  Sisson,  VI  East,  131  ;  Ilolcombe  v.  larly  situated,  is  relevant,  and  proximity 
Hewson,  2  Cami)b.  391 ;  Viney  v.  Bass,  1  or  remoteness  of  time  and  place  goes  to 
Esp.  2'J2  ;  Clothier  v.  Chapman,  14  East,  the  weight,  not  the  competency,  of  the 
331,  n.  evidence.     Bcnham  i'.  Dunbar,  103  Mass. 

8  Edge  V.  Pemberton.  12  M.  &  W.  187.  3G5.] 
[See,  on  this  question  of  relevancy,  opin-  *  See  infra,  §§  448,  449,  4.50. 
ion  bv  Doc.  J.,  in  Darling  v.  Westmore-  ^  Crowley  v.  Page,  7  Car.  &  P.  780; 
land,  02  N.  II.  401,  where  it  was  held,  con-  Harris  v.  Tii)pct,  2  ('ami)b.  0:!7  ;  Rex  v. 
trary  to  the  doctrine  in  Massachusetts  Watson,  2  Stark.  11(5;  Connnonwealth  w. 
(Coilins  V.  Dorchester,  0  Cush.  390,  fol-  Buzzel,  Iti  Pick.  157,  158;  Ware  i-.  Ware, 
lowed  in  Hawks  r.  Charlemont,  110  Mass.  8  (ireenl.  42  ICooudts  v.  Winchester,  .39 
110),  in  an  action  for  damages  for  a  de-  N.  H.  1].  A  further  reason  may  be,  Jhat 
feet  in  a  liighway,  a  horse  having  been  the  evidence,  not  being  to  a  material 
frightened  by  a  pile  of  lumber,  —  that  point,  cannot  be  the  subject  of  an  indict- 
other  horses  had  been  frightened  by  the  mcnt  for  perjury.  Odiorne  v.  Winkley, 
eame  pile.     See  also  45  N.  H.  148.     In  2  Call.  51,  53. 


CHAP.  I.] 


THE  EELEVA2SrCY   OF   EVIDElSrCE. 


69 


to  have  transmitted  them  from  the  place  at  which  they  bore  date.^ 
So,  in  an  indictment  for  knowingly  uttering  a  forged  document, 
or  a  counterfeit  bank-note,  proof  of  the  possession,  or  of  the  prior 
or  subsequent  utterance  of  other  false  documents  or  notes,  though 
of  a  different  description,  is  admitted,  as  material  to  the  question 
of  guilty  knowledge  or  intent.^  So,  in  actions  for  defamation, 
evidence  of  other  language,  spoken  or  written  by  the  defendant 
at  other  times,  is  admissible  under  the  general  issue,  in  proof  of 
the  spirit  and  intention  of  the  party,  in  uttering  the  words  or 
publishing  the  libel  charged;  and  this,  whether  the  language 
thus  proved  be  in  itself  actionable  or  not.^     Cases  of  this  sort, 


1  Gibson  v.  Hunter,  2  H.  Bl.  288; 
Minet  v.  Gibson,  3  T.  R.  481 ;  1  H.  Bl. 
56!). 

2  Bex  V.  Wylie,  1  New  Rep.  92,  94. 
See  other  examples  in  McKenney  v. 
Dingley,  5  Greenl.  172;  Bridge  v.  Eggles- 
ton,  14" Mass.  245 ;  Rex  v.  BaU,  1  Campb. 
324 ;  Rex  v.  Roberts,  1  Campb.  399 ;  Rex 
V.  Houghton,  Russ.  &  Ry.  130 ;  Rex  v. 
Smith,  4  C.  &  P.  411 ;  Rickman's  case,  2 
East,  P.  C.  1035;  Robinson's  case.  Id. 
1110,  1112;  Rex  v.  Northampton,  2  M.  & 
S.  262 ;  Commonwealth  v.  Turner,  3 
Mete.  19.  See  also  Bottomle.v  v.  United 
States,  1  Storj',  143,  144,  where  this  doc- 
trine is  clearh'  expounded  by  Story,  J. ; 
Pierce  v.  Hoffman,  24  Vt.  525  [Castle  v. 
Bullard,  23  How.  (U.  S.)  172;  Butler  v. 
Collins,  12  Cal.  457  ;  French  v.  White,  5 
Duer,  254.  So  other  similar  false  pre- 
tences, made  at  or  about  the  same  time, 
are  admissible  on  the  question  of  intent. 
Reg.  V.  Francis,  12  Cox,  C.  C.  612 ;  Com. 
f.  Coe,  115  ^Slass.  481.  So  also  other 
receipts  of  stolen  goods  from  same  thief, 
knowing  them  to  be  stolen,  are  admis- 
sible in  an  indictment  for  receiving 
stolen  goods,  on  the  question  of  in- 
tent, Copperman  v.  People,  56  N.  Y. 
591 ;  though  it  also  proves  a  violation  of 
another  law,  Schaser  v.  State,  36  Wis. 
429 ;  Coleman  v.  People,  58  N.  Y.  555 ; 
Schriedly  v.  State,  23  Ohio  St.  130.  In 
Jordan  v.  Osgood,  109  Mass.  457,  it  was 
lield  that  other  frauds  are  admissible 
to  prove  motive  and  intent  only  where 
there  is  evidence  that  the  two  are  parts 
of  one  scheme  or  plan  of  fraud  com- 
mitted in  pursuance  of  a  common  pur- 
pose. But  see  Com.  v.  Coe,  115  Mass. 
481 ;  Huntingford  v.  Massey,  1  F.  &  F. 
960.  So,  in  divorce  cases,  other  adul- 
terous acts,  both  before  and  after  the 
adultery  charged,  are  admissible  to  show 
the  character  of  tlie  act  charged.  Thayer 
V.   Thayer,   101    Mass.   Ill,    overruling 


Com.  V.  Tlirasher,  11  Gray  (Mass.),  450; 
and  Com.  v.  Horton,  2  Gray,  354,  contra ; 
Boddy  V.  Boddy,  30  L.  J.  Pr.  &  Mat.  23 ; 
Com.  V.  Curtis,  97  ilass.  674]. 

3  Pearson  v.  Le  Maitre,  5  M.  &  Gr. 
700  ;  s.  c.  6  Scott,  N.  R.  607 ;  Rustell  v. 
Macquister,  1  Campb.  49,  n. ;  Saunders 
V.  Mills,  6  Ring.  213 ;  Warwick  v.  Foulkes, 
12  M.  &  W.  507 ;  Long  v.  Barrett,  7  Ir. 
Law,  439;  s.  c.  8  Ir.  Law,  331,  on  error ; 
{post,  vol.  ii.  §  418  ;  2  Starkie  on  Slander, 
53-57.  So  for  the  purpose  of  proving 
that  a  conveyance  of  property  made  by 
a  bankrupt  was  fraudulent  under  the 
United  States  Bankrupt  Act  of  1841,  be- 
cause made  to  defraud  the  plaintiff  of 
his  debt,  evidence  is  admissible,  tending 
to  sliow  that  the  defendant  entertained 
such  fraudulent  intent  even  before  the 
passage  of  said  bankrupt  act.  Bigelow, 
J.,  in  delivering  the  opinion  of  the  court, 
said:  "The  inquiry  before  the  jury  in- 
volved two  essential  elements.  One  was 
the  establishment  of  a  fraudulent  design 
on  the  part  of  the  defendant  towards  his 
creditors ;  the  other  was  the  carrjing  out 
and  fulfilment  of  that  design  through  the 
instrumentality  of  the  bankrupt  act.  To 
maintain  the  first  of  these  propositions, 
as  one  link  in  the  chain  of  evidence, 
proof  of  an  intent,  prior  to  the  passage 
of  the  bankrupt  act,  to  defraud  the  plain- 
tiff of  his  debt  by  a  fraudulent  conceal- 
ment and  convej'ance  of  his  property, 
was  clearly  competent.  W^henever  the 
intent  of  a  party  forms  part  of  the  matter 
in  issue,  upon  the  pleadings,  evidence 
may  be  given  of  other  acts,  not  in  issue, 
provided  they  tend  to  establish  the  in- 
tent of  the  party  in  doing  the  acts  in 
question.  Rose.  Crim.  Ev.  (3d  Am.  ed.) 
99.  The  reason  for  this  rule  is  obvious. 
The  only  mode  of  showing  a  present  in- 
tent is  often  to  be  found  in  proof  of  a  like 
intent  previously  entertained.  The  ex- 
istence in  the  mind  of  a  deliberate  design 


70 


LAW   OF   EVIDENCE. 


[PAKT  II. 


therefore,  instead  of  being  exceptions  to  tlie  rule,  fall  strictly 
Avithin  it.^ 


to  do  a  certain  act,  when  once  proved, 
may  properly  lead  to  the  inference  tliat 
the  intent  once  harbored  continued  and 
was  carried  into  effect  by  acts  long  sub- 
sequent to  the  origin  of  the  motive  by 
wiiich  they  were  prompted.  Even  in 
criminal  cases,  acts  and  declarations  of  a 
pnrty  made  at  a  former  time  are  admis- 
sible to  prove  the  intent  of  the  same  per- 
son at  the  time  of  the  commission  of  an 
otience.  2  Phil.  Ev.  (3d  ed.)  498;  Rose. 
Crim.  Ev.  {3d  Amer.  ed.)  95.  In  the 
l^roof  of  cases  involving  tlie  motives  of 
men  as  influencing  and  giving  character 
to  their  acts,  it  is  impossible  to  confine 
the  evidence  within  any  precise  limit. 
It  must  necessarily  proceed  by  steps  or 
stages  leading  to  the  main  point  in  issue. 
In  the  case  at  bar,  when  the  plaintiff  had 
proved  an  intent  on  the  part  of  the  de- 
fendant to  conceal  his  property,  for  the 
puri)ose  of  defrauding  his  creditors,  an- 
terior to  the  passage  of  the  bankrupt  act, 
he  had  advanced  one  step  towards  the 
proof  of  the  real  issue  before  the  jury; 
and  if  he  satisfied  the  jury  that  this  in- 
tent once  harbored  continued  in  the  mind 
of  the  defendant,  and  was  carried  out  by 
availing  himself  of  the  provisions  of  the 
bankrupt  act,  he  had  thus  proved  by  a 
legitimate  chain  of  evidence  the  matter 
set  up  in  his  specification  as  a  ground  for 
invalidating  the  defendant's  discharge  in 
bankruptcy."  Cook  v.  Moore,  11  Cush. 
216,217.  See  also  post,  vol.  iii.  §  111. 
[A  ]>arty  who  becomes  a  witness,  becomes 
80  for  all  purposes,  unless  the  statute 
limits  his  capacity,  and  may  testify  to 
his  own  mental  processes,  such  as  knowl- 
edge and  intent,  as  well  as  to  other  facts. 
AVlieeldon  v.  Wilson,  ii  Maine,  1.  Law- 
ton  V.  Chase,  108  Mass.  241.] 

1  [Under  some  circumstances,  the  proof 
of  the  commission  of  one  crime  may  be 
evidence  of  the  commission  of  another. 
Thus  it  has  been  hehl,  that  where  a  pris- 
oner was  charged  witli  the  murder  of 
lier  child  by  poison,  and  the  defence  was 
tiiat  the  death  resulted  from  tlie  acci- 
d(.'ntal  taking  of  sucli  poison,  evidence 
was  admissible  to  i)rove  tiiat  two  other 
children  of  the  prisoner  and  a  lodger  in 
lur  house,  within  the  year  j)revious  to  the 
crime  charged,  had  died  from  the  same 
poison.  Reg.  v.  Cotton,  12  Co.x's  Cr.  Cas. 
400,  following  Reg.  v.  Geering,  18  L.  J. 
M.  C.  215,  anil  Reg.  v.  Garner,  3  F.  &  F. 
G81 ;  Reg.  v.  Roden,  12  Cox's  Cr.  Cas.  630. 
So  where  the  defendant  was  tried  for  suf- 
focating her  infant  in  bod,  evidence  was 
admitted  that  the  deleudant  had  had  four 


other  children,  who  died  at  early  ages, 
by  causes  not  shown.  Reg.  v.  Roden,  12 
Cox's  Cr.  Cas.  630,  per  Leech,  J.,  who 
followed  Reg.  v.  Cotton,  t(bi  supra,  and 
said  that  the  Lord  Chief  Justice  and  he 
•were  consulted  by  Archibald,  J.,  who 
presided  in  that  case,  and  consulted  also 
with  Pollock,  B. 

So  when  two  persons  are  murdered 
at  the  same  time,  and  as  part  of  tiie 
same  transaction,  on  an  indictment  for 
the  murder  of  one,  evidence  of  the 
murder  of  the  other  may  be  given  if 
it  tends  to  throw  light  upon  the  mo- 
tive whicli  led  to  the  murder.  ReJk  v. 
Baker,  2  M.  &  Rob.  53.  But  see  also 
Rex  V.  Wiley,  1  N.  R.  94.  The  murder  of 
the  two  must  be  essentially  one  transac- 
tion. Brown  v.  Com.,  73  Pa.  St.  361 ; 
Rex  V.  Ellis,  6  B.  &  C.  147  ;  Rex  v.  Long, 
6  C.  &  P.  179;  Rex  v.  Bleasdale,  2  C.  & 
K.  765.  Where  a  prisoner  is  on  trial  for 
stealing  a  horse,  it  may  be  shown  that 
he  stole  a  wagon  on  the  same  night  be- 
longing to  another  person,  and  used  it 
with  the  stolen  horse.  Phillip  v.  People, 
57  Barb.  (N.  Y.)  353.  On  a  trial  for  in- 
fanticide, a  confession  that  the  prisoner 
had  before  had  a  child  in  the  same  way, 
and  had  put  it  away,  was  admitted.  State 
V.  Shackford,  69  N.  C.  486.  But  see  Rex 
V.  Cole,  1  Ph.  Ev.  477.  But  the  rule  was 
more  cautiously  laid  down  in  a  recent 
case  in  Pennsylvania,  where  it  was  said 
that,  to  make  one  criminal  act  evidence 
of  another,  a  connection  must  have  ex- 
isted in  the  mind  of  the  actor,  linking 
them  together  for  some  j)urpose  he  in- 
tended to  accomplish  ;  or  it  must  be  nec- 
essary to  identify  tlie  person  of  tlie 
actor  by  a  connection  which  shows  that 
he  who  committed  one  act  must  have 
done  the  otiicr.  Shaffner  v.  Com.,  72 
Pa.  St.  00.  Evidence  involving  the  fact 
of  the  commission  of  another  crime 
is  nevertheless  relevant  if  it  goes  to 
show  the  identity  of  the  prisoner  with  tlie 
criminal  actor,  or  his  proximity  to  the 
place  where  the  crime  was  committed, 
or  any  other  facts  which,  from  the  fact 
of  tlie  commission,  go  to  show  the  con- 
nection of  the  prisoner  with  the  crime 
charged.  Rex  v.  Pearce,  Peake,  75  ;  Rex 
V.  Egerton,  R.  &  R.  375;  Rex  v.  Briggs, 
2  M.  &  Rob.  199;  Rex  v.  Rooney,  7  C.  & 
P.  517. 

"  In  civil  causes,  too,  evidence  of  col- 
lateral facts  is  sometimes  received  for 
tlie  purpose  of  confirming  the  testimony 
of  witnesses.  For  instance,  where  a 
party  was  sued  on  a  bill  of  exchange, 


CHAP.  I.] 


THE  RELEVANCY   OF   EVIDENCE. 


71 


§  53  a.     Title  to  lauds.     In  proof  of  the  otvnersMi)  of  laiuh,  by 
acts  of  possession,  the  same  hxtitude  is  allowed.     It  is  impossible, 


winch  had  been  accepted  in  his  name  by 
anotlier  person,  and  evidence  had  been 
given  tliat  tliis  person  liad  a  general  au- 
thority from  the  defendant  to  accept 
bills  in  his  name,  the  court  held  that  an 
admission  by  the  defendant  of  his  lia- 
bility on  another  bill  so  accepted,  was 
receivable  in  evidence,  in  order  to  con- 
firm the  witness  who  had  spoken  to  the 
general  authority.  Llewellvn  v.  Winck- 
worth,  la  M.  &  W.  598.  See  HoUingliani 
i".  Head,  27  L.  J.  C.  P.  241 ;  s.  c.  4  Com. 

B.  N.  s.  3(58 ;  Morris  v.  Bethell,  4  L.  R. 

C.  P.  7G5;  s.  c.  38  L.  J.  C.  P.  377;  s.  c. 
5  L.  R.  C.  P.  47. 

"Another  exception  to  the  rule  ex- 
cluding evidence  of  collateral  facts  is 
recognized,  where  the  question  is  a 
matter  of  science,  and  where  the  facts 
proved,  though  not  directly  in  issue, 
tend  to  illustrate  t/ie  opinions  of  scien- 
tific witnesses.  Thus,  where  the  point 
in  dispute  was,  whether  a  sea-wall  had 
caused  the  choking  up  of  a  harbor, 
and  engineers  were  called  to  give  tlieir 
opinions  as  to  the  effect  of  the  wall, 
proof  that  other  harbors  on  the  same 
coast,  where  there  were  no  embankments, 
had  begun  to  be  choked  about  the  same 
time  as  the  harbor  in  question,  was  ad- 
mitted, as  such  evidence  served  to  elu- 
cidate the  reasoning  of  the  skilled  wit- 
nesses. Folkes  V.  Chadd,  3  Doug.  157 ; 
McFadden  v.  Murdock,  1  I.  R.  C.  L.  211. 

"  In  some  cases  evidence  has  been 
received  of  facts  whicli  happened  be- 
fore or  after  the  principal  transaction, 
and  wliich  had  no  direct  or  apparent 
connection  with  it ;  and,  consequently, 
their  admission  might  seem,  at  first 
view,  to  constitute  another  exception 
to  this  rule.  But  in  these  cases,  the 
knoivle(l(/e,  or  good  faith,  or  intent  of  the 
party  was  a  material  fact,  on  which 
the  evidence,  apparently  collateral,  and 
foreign  to  the  main  subject,  had  a  di- 
rect bearing.  The  admission,  there- 
fire,  of  such  evidence,  instead  of  being 
an  exception  to  the  rule,  falls  strictly 
within  it.  Thus,  where  the  question  was, 
whether  the  acceptor  of  a  bill  of  ex- 
change either  knew  that  the  name  of  the 
payee  was  fictitious,  or  else  had  given  to 
the  drawer  a  general  authority  to  draw 
bills  on  him  payable  to  fictitious  persons, 
evidence  was  admitted  to  show  that  he 
had  accepted  other  bills,  drawn  in  like 
manner,  before  it  was  possible  to  have 
transmitted  them  from  the  place  at  which 
they  bore  date.     Gibson  v.  Hunter,  2  H. 


Bl.  288.  So,  in  an  action  for  an  assault 
and  consequent  injury,  where  evidence 
for  the  defence  was  given  that  the  plain- 
tiff had  ascribed  her  injury  to  a  pre- 
vious accident,  she  was  allowed  to  show 
that  in  fact  no  such  accident  had  ever 
occurred.  Melhuish  v.  Collier,  15  Q.  B. 
878.  So,  on  any  trial,  evidence  will  be 
admissible  to  prove  or  disprove  any  at- 
tempt at  subornation  of  witnesses.  Id. 
So,  in  an  action  for  fraudulently  repre- 
senting that  a  trader  was  trustworthy, 
whereby  the  plaintiff  was  induced  to  sell 
him  goods,  and  thus  lost  the  price  of 
them,  the  court  permitted  the  defendant 
to  call  fellow-townsmen  of  the  trader  to 
state  that,  at  the  time  when  the  repre- 
sentation was  made,  the  man  was,  ac- 
cording to  their  belief,  in  good  credit. 
Sheen  v.  Bimipstead,  1  H.  &  C.  858; 
affirmed  in  Ex.  Ch.  2  New  R.  370  ;  2  H.  & 
C.  193  ;  s.  c.  32  L.  J.  Ex.  271.  So,  in  an 
action  for  work  and  labor  in  fixing  rail- 
ings to  certain  houses  belonging  to  the 
defendant,  where  the  defence  was  that 
the  plaintiff  had  given  credit  to  a  third 
person,  by  whom  the  houses  were  built 
under  a  contract,  the  builder  was  allowed 
to  state  that  the  order  was  given  by  him 
on  his  own  account,  and  not  as  agent  for 
the  defendant ;  and  that  the  defendant 
had  actually  paid  him  for  the  building 
of  the  houses,  including  the  charge  for 
the  railings.  This  evidence  of  payment 
was  objected  to,  but  the  court  held  that 
it  was  clearly  admissible,  as  tending  to 
show  the  bona  files  of  the  defence.  Ger- 
ish  V.  Chartier,  1  Com.  B.  13.  In  another 
case,  where  a  plaintiff  sought  to  set  aside 
a  contract  on  the  ground  of  his  having 
been  insane  when  it  was  made,  the  court 
held,  upon  an  issue  as  to  whether  or  not 
the  defendant  was  at  the  time  aware  of 
the  insanity,  that  evidence  of  the  plain- 
tiff's conduct,  at  diflferent  times  both  be- 
fore and  after  the  date  of  the  contract, 
was  admissible,  for  the  purpose  of  show- 
ing that  the  madness  was  of  such  a 
character  as  must  have  been  apparent 
to  any  one  who  had  had  opportunities 
of  observation  like  those  afforded  to  the 
defendant.  Beavan  v.  McDonnell,  23  L. 
J.  Ex.  326 ;  s.  c.  10  Ex.  R.  184."  Taylor, 
Ev.  §§  315-317. 

[It  will  generally  be  found,  that  the 
circumstances  of  the  parties  to  the  suit, 
and  the  position  in  which  they  stood 
when  the  matter  in  controversy  oc- 
curred ("Woodman  v.  Buchanan,  5  L. 
R.  Q.  B.  285),  are  proper  subjects   of 


72 


LAW   OF   EVIDENCE. 


[PAET  II. 


as  has  been  observed,  to  confine  tlie  evidence  to  the  precise  spot 
on  which  a  supposed  trespass  was  committed ;  evidence  may  be 
given  of  acts  done  on  other  parts,  provided  there  is  such  a  com- 
mon character  of  locality  between  those  parts  and  the  spot  in 
question,  as  woidd  raise  a  reasonable  inference  in  the  minds  of 
the  jury  that  the  place  in  dispute  belonged  to  the  party,  if  the 
other  parts  did.  The  evidence  of  such  acts  is  admissible  propria 
vigore,  as  tending  to  prove  that  he  who  did  them  is  the  owner  of 
the  soil ;  though  if  they  were  done  in  the  absence  of  all  persons 
interested  to  dispute  them,  they  are  of  less  weight.^ 

§  54.  General  character.  To  this  rule  may  be  referred  the  ad- 
missibility of  evidence  of  the  general  character  of  the  parties.^ 
In  civil  cases,  such  evidence  is  not  admitted,  unless  the  nature  of 
the  action  involves  the  general  character  of  the  party,  or  goes 
directly  to*  affect  it.^  Thus,  evidence  impeaching  the  previous 
general  character  of  the  wife  or  daughter,  in  regard  to  chastity, 
is  admissible  in  an  action  by  the  husband  or  father  for  seduction ; 
and  this,  again,  may  be  rebutted  by  counter  proof.*  But  such 
evidence,  referring  to  a  time  subsequent  to  the  act  complained  of, 
is  rejected.^  And  generally,  in  actions  of  tort,  wherever  the  de- 
fendant is  charged  with  fraud  from  mere  circumstances,  evidence 
of  his  general  good  character  is  admissible  to  repel  it.^     So,  also, 


evidence ;  and  indeed  the  change  in 
the  law,  making  parties  witnesses  for 
tiiemselves,  has  rendered  tliis  proof  of 
"surrounding  circumstances"  still  more 
important  than  formerly  (Dowling  v. 
Dowling,  10  Ir.  Law,  211),  where  it  was 
held  tliat  in  an  action  for  money  lent, 
the  poverty  of  the  lender  was  held  to  be 
relevant  1 

1  Jones  V.  Williams,  2  M.  &  W.  320, 
per  Parke,  B.  And  see  Doe  v.  Kemp,  7 
IJini,'.  332;  2  Ring.  N.  C.  102  (Simpson  v. 
])endy,  3(1  Eng.  L.  &  Eq.  3tiC.|. 

-  [Commonwealtii  I.'.  Webster,  5  Cush. 
824,325.  Ciiaracter  is  "  reputation,"  or 
general  standing  in  pubhc  opinion.  Reg. 
V.  Kowton,  34  L.  J.  M.  C.  57.  See  as  to 
character  of  witnesses,  post,  §  4ij'j.) 

^  Attorney-General  v.  Bowman,  2  B. 
&  P.  532,  expressly  ado]ited  in  Fowler  v. 
il'vtna  Fire  Ins.  Co.,  0  Cowen,  673,  075  ; 
Anderson  v.  Long,  10  S.  &  H.  55 ;  Hum- 
phrey V.  Humphrey,  7  Conn.  110;  Nash 
V.  Gilkeson,  4  S.  &  11.  352;  Jetlries  v. 
Harris,  3  Hawks,  105  [Pratt  v.  Andrews, 
4  Comst.  4',)3 ;  Porter  r.  Seller.  23  Penn. 
St.  424 ;  see  also  24  Id.  401,  40« ;  Gold- 


smith V.  Picard,  27  Ala.  142 ;  Lander  r. 
Seaver,  32  Vt.  114]. 

*  Bate  V.  Hill,  1  C.  &  P.  100;  Verry 
V.  Watklns,  7  C.  &  P.  308;  Carpenter  v. 
Wahl,  11  Ad.  &  El.  803  ;  s.  c.  3  P.  &  D. 
457  ;  Elsam  v.  Faucett,  2  Esp.  502;  Dodd 
r.  Norris,  3  Campb.  519.  See  contra, 
McKea  v.  Lilly,  1  Iredell,  118. 

^  Elsam  V.  Faucett,  2  Esp.  502;  Coote 
V.  Berty,  12  Mod.  232.  The  rule  is  the 
same  in  an  actiim  by  a  woman  for  a 
breach  of  a  promise  of  marriage.  See 
Johnson  v.  Caulkins,  1  Johns.  Cas.  110; 
Boynton  v.  Kellogg,  3  Mass.  189  ;  Foulkes 
V.  Sellway,  3  Esp.  230 ;  Bamlield  v.  Mas- 
sey,  1  Campb.  400;  Dodd  v.  Norris,  3 
Campb.  519. 

6  ilnan  v.  Perry,  3  Caines,  120.  See 
also  Walker  v.  Stephenson,  3  Esp.  284. 
This  case  of  Kuan  v.  Perry  has  some- 
times been  mentioned  with  disapproba- 
tion;  but,  when  correctly  understood,  it 
is  conceived  to  be  not  opposed  to  tlie 
well-settled  rule,  that  evidence  of  general 
character  is  admissible  only  in  cases 
where  it  is  involved  in  the  issue.  In 
that  case  the  connnander  of  a  national 


CHAP.  I.] 


THE  PvELEYANCY  OF   ETHDENCE. 


73 


ill  criminal  prosecutions,  tlie  charge  of  a  rape,  or  of  an  assault 
with  intent  to  commit  a  rape,  is  considered  as  involving  not  only 
the  general  character  of  the  prosecutrix  for  chastity,  but  the  par- 
ticular fact  of  her  previous  criminal  connection  with  the  prisoner, 
though  not  with  other  persons.^     And  in  all  cases,  where  evidence 


frigate  was  sued  in  trespass  for  seizJig 
aiul  detaining  the  plaintiff's  vessel,  airl 
taking  her  out  of  her  course,  by  means 
whereof  she  was  captured  by  an  enemy. 
The  facts  were  clearly  proved ;  but  the 
question  was,  whether  the  defendant 
acted  in  honest  obedience  to  his  instruc- 
tions from  the  navy  department,  which 
were  in  the  case,  or  with  a  franduknt  in- 
lent,  and  in  collusion  with  the  captors,  as 
the  plaintiff  alleged  to  the  jury,  and  at- 
tempted to  sustain  by  some  of  the  cir- 
cumstances proved.  It  was  to  repel  this 
imputation  of  fraudulent  intent,  inferred 
from  slight  circumstances,  that  the  de- 
fendant was  permitted  to  appeal  to  his 
own  "fair  and  good  reputation."  And 
in  coniirming  this  decision  in  bank,  it 
was  observed  that,  "  in  actions  of  tort, 
and  especially  charging  a  defendant  with 
gross  depravity  and  fraud,  upon  circum- 
stances merel}',  evidence  of  uniform  in- 
tegrity and  good  character  is  oftentimes 
the  only  testimony  which  a  defendant 
can  oppose  to  suspicious  circumstances." 
On  this  ground  this  case  was  recognized 
by  the  court  as  good  law,  in  Fowler  v. 
yEtna  Fire  Ins.  Co.,  6  Cowen,  675.  And 
five  years  afterwards,  in  Townsend  v. 
Graves,  o  Paige,  455,  45(3,  it  was  again 
cited  with  approbation  by  Chancellor 
Walworth,  who  laid  it  down  as  a  general 
rule  of  evidence,  "  that  if  a  party  is 
charged  with  a  crime,  or  any  other  act 
involving  moral  turpitude,  which  is  en- 
deavored to  be  fastened  upon  him  by 
circumstantial  evidence,  or  by  the  testi- 
mony of  witnesses  of  doubtful  credit,  he 
may  introduce  proof  of  his  former  good 
character  for  honestj'  and  integrity,  to 
rebut  the  presumption  of  guilt  arising 
from  such  evidence,  which  it  may  be  im- 
possible for  him  to  contradict  or  ex- 
plain." In  Gougli  V.  St.  John,  16  Wend. 
046,  the  defendant  was  sued  in  an  action 
on  the  case,  for  a  false  representation  as 
to  the  solvency  of  «.  third  person.  The 
representation  itself  was  in  writing,  and 
verbal  testimony  was  offered,  tending  to 
show  that  the  defendant  knew  it  to  be 
false.  To  rebut  this  charge,  proof  that 
the  defendant  sustained  a  good  character 
for  honesty  and  fairness  in  dealing,  was 
offered  and  admitted.  Cowen,  J.,  held, 
that  the  fraudulent  intent  was  a  neces- 
sary inference  of  law  from  the  falsity  of 


the  representation;  and  that  the  evidence 
of  character  was  improjierly  admitted. 
He  proceeded  to  cite  and  condemn  the 
case  of  Ruan  v.  Perry,  as  favoring  the 
general  admissibility  of  evidence  of 
character  in  civil  actions,  for  injuries  to 
property.  But  such  is  manifestly  not 
the  doctrine  of  that  case.  It  only  de- 
cides, that  where  intention  (not  knoiclech/e) 
is  the  point  in  issue,  and  the  proof  con- 
sists of  slight  circumstances,  evidence 
of  character  is  admissible.  The  other 
judges  agreed  that  the  evidence  was  im- 
properly admitted  in  tha#ca»e,  but  said 
nothing  as  to  the  case  of  Ruan  v.  Perry. 
They  denied,  however,  that  fraud  was  in 
such  cases  an  inference  of  law.  [The 
cases  cited  hardly  support  the  text. 
Ruan  V.  Perry,  S  Caines,  was  "  long  since 
overruled."  Bronson,  C.  J.,  in  Pratt  v. 
Andrews,  4  N.  Y.  493.  See  also  Harrison 
V.  Russell,  I  Wilson  (Sup.  Ct.  Ind.),3y2; 
Porter  v.  Seller,  23  Pa.  St.  424.] 

The  ground  on  which  evidence  of 
good  character  is  admitted  in  criminal 
prosecutions  is  this,  that  the  intent  with 
which  the  act,  charged  as  a  crime,  was 
done,  is  of  the  essence  of  the  issue ; 
agreeably  to  the  maxim,  "  Nemo  reus 
est,  nisi  mens  sit  rea ; "  and  the  prevailing 
character  of  the  party's  mind,  as  evinced 
by  the  previous  habit  of  his  life,  is  a 
material  element  in  discovering  that  in- 
tent in  the  instance  in  question.  Upon 
the  same  principle,  the  same  evidence 
ought  to  be  admitted  in  all  other  cases, 
whatever  be  the  form  of  proceeding, 
where  the  intent  is  material  to  be  found 
as  a  fact  involved  in  the  issue. 

1  Rex  V.  Clarke,  2  Stark.  241 ;  1  Phil. 
&  Am.  on  Evid.  490 ;  Low  v.  Mitchell,  0 
Shepl.  372;  Commonwealth  v.  Murphy, 
14  Mass.  387;  2  Stark.  Evid.  (by  Met- 
calf)  369,  n.  (1) ;  Rex  v.  Martin,  6  V.  & 
C.  562;  Rex  v.  Hodson,  Russ.  &  Ry.  211; 
Regina  v.  Clay,  5  Cox,  Cr.  C.  146.  [And 
for  an  indecent  assault,  Cora.  v.  Kendall, 
113  Mass.  210]  But  in  an  action  on  the 
case  for  seduction,  evidence  of  particular 
acts  of  unchastity  with  other  persons  is 
admissible.  Verry  v.  Watkins,  7  C.  &  P. 
308.  Where  one  is  charged  with  keeping 
a  house  of  ill  fame  ajler  the  statute  went 
into  operation,  evidence  of  the  bad  rep- 
utation of  the  house  bffure  that  time,  was 
held  admissible,  as  conducing  to  prove 


74 


LAW   OF   EVIDENCE. 


[PAET  n. 


is  admitted  touching  the  general  character  of  the  party,  it  ought 
manifestly  to  bear  reference  to  the  nature  of  the  charge  against 
him.^ 

§  55.  Same  subject.  It  is  not  every  allegation  of  fi-aud  that 
may  be  said  to  -put  the  character  in  issue ;  for,  if  it  were  so,  the 
defendant's  character  would  be  put  in  issue  in  the  ordinary  form 
of  declaring  in  assumpsit.  This  expression  is  technical,  and  con- 
fined to  certain  actions,  from  the  nature  of  wliich,  as  in  the  pre- 
ceding instances,  the  character  of  the  parties,  or  some  of  them,  is 
of  particular  importance.  This  kind  of  evidence  is  therefore 
rejected,  wherever  the  general  character  is  involved  by  the  plea 
only,  and  not  by  the  nature  of  the  action.^  Nor  is  it  received  in 
actions  of  assault  and  battery ;  ^  nor  in  assumpsit ;  *  nor  in  trespass 
on  the  caseior  malicious  prosecution;^  nor  in  an  information  for 
a  penalty  for  violation  of  the  civil,  police,  or  revenue  laws ;  ^  nor 
in  ejectment,  brought  in  order  to  set  aside  a  will  for  fraud  com- 
mitted by  the  defendant.'  Whether  evidence  impeaching  the 
plaintiff's  previous  general  character  is  admissible  in  an  action  of 
slander,  as  affecting  the  question  of  damages,  is  a  point  which  has 
been  much  controverted ;  but  the  weight  of  authority  is  in  favor 
of  admittinq;  such  evidence.^     But  it  seems  that  the  character  of 


tliat  it  sustained  the  same  reputation 
afterwards.  Cadwell  v.  Tiie  State,  17 
Conn.  467.  [Where  the  jury  assess  the 
fine,  evidence  of  tlie  defendant's  charac- 
ter is  material  with  reference  to  the 
amount  of  tlie  fine,  as  well  as  to  the 
proof  of  the  crime.  Rosenbaum  ;;.  State, 
33  Ala.  354.  And  see  also  post,  vol.  iii. 
§  25,  et  strj.] 

1  Douglass  V.  Tousey,  2  Wend.  352. 

2  Anderson  v.  Long,  10  S.  &  R.  55; 
Potter  V.  Webb  ct  nl.  6  Greenl.  14 ;  Greg- 
ory I'.  Thomas,  '1  Bibb,  280. 

3  Givens  v.  Bradley,  3  Bibb,  192.  But 
in  the  admiralty  courts,  where  a  seaman 
sues  against  tiie  master  for  damages,  for 
illegal  and  unjustifiable  punishment,  his 
general  conduct  and  character  during 
the  voyage  are  involved  in  tlie  issue. 
rettingiU  y.  Dinsmore,  Daveis,  208,  214. 

*  Nash  V.  Gilkeson,  5  S.  &  R.  352. 
6  Gregory  v.  Thomas,  2  Bibb,  286. 

"  Attorney-General  v.  Bowman,  2  B. 
&  P.  5.32,  n. 

•  Goodright  v.  Hicks,  Bull.  N.  P.  296. 
[Nor  is  the  character  of  tiie  plaintiff  in- 
volved in  the  issue,  where  the  action  is 
on  a  policy  of  insurance  against  loss  by 
lire,  and  the  defence  is  that  the  fire  was 


occasioned  by  the  wilful  and  fraudulent 
act  of  the  plaintiff.  The  nature  of  the 
action  excludes  all  such  inquiry  or  evi- 
dence in  relation  thereto.  Sclunidt  v. 
New  York,  &c.,  Ins.  Co.,  1  Gray,  529, 
535.  Nor  in  an  action  for  commencing  a 
suit  against  the  plaintiff  without  au- 
thority, where  the  plaintiff  at  the  trial 
gives  notice  that  he  shall  claim  no  dam- 
ages for  special  injury  to  his  character 
by  reason  of  the  suit.  Smith  v.  Hynd- 
man,  10  Cush.  554.  Nor  in  an  ax."tion 
for  negligence  to  show  that  the  plaintiff 
\ised  due  care  in  this  particular  case. 
McDonald  v.  Savoy,  110  Mass.  49.] 

8  2  Starkie  on  Slander,  88,  81)-'.»5,  n. ; 
Root  V.  King,  7  Cowen,  613;  Bailey  v. 
Hyde,  3  Conn.  463 ;  Bennett  v.  Hyde,  6 
Conn.  24;  Douglass  v.  Tousey,  2  Wend. 
353;  Inman  v.  Foster,  8  Wend.  602; 
Larned  v.  Buflfington,  3  Mass.  552 ;  Wal- 
cott  V.  Hall,  G  Mass.  514 ;  Ross  v.  Lap- 
ham,  14  Mass.  275;  Bodwell  v.  Swan,  3 
Pick.  378;  Buford  v.  McLuny,  1  Nott  & 
McCord,  208 ;  Sawyer  v.  Eifert,  2  Nott  & 
McCord,  511;  King  i*.  Waring  et  ux.  5 
Esp.  14;   Rodriguez  v.  Tadmire,  2  Esp. 

721;  V.  Moore,   1  M.  &  S.  284; 

Earl  of  Leicester  v.  Walter,  2  Campb. 


CHAP.  I.] 


THE  RELEVANCY  OF  EVIDENCE. 


the  party,  in  regard  to  any  particular  trait,  is  not  in  issue,  unless 
it  be  the  trait  wliich  is  involved  in  the  matter  charged  against 
him ;  and  of  tliis  it  is  only  evidence  of  general  reputation^  which 
is  to  he  admitted,  and  not  positive  evidence  of  general  bad  con- 
duct.^ 


251 ;  Williams  v.  Callendar,  Holt's  Cas. 
307;  2  Stark.  Evid.  216.  In  Foot  v. 
Tracy,  1  Johns.  45,  the  Supreme  Court 
of  New  York  was  equally  divided  upon 
this  question  ;  Kent  and  Thompson,  JJ., 
being  in  favor  of  admitting  the  evi- 
dence, and  Livingston  and  Tompkins, 
JJ.,  against  it.  [In  a  later  case.  Spring- 
stein  V.  Field,  Anthon,  185,  Spencer,  J., 
said  he  had  no  doubt  about  the  admissi- 
bility of  the  evidence  offered  in  the  case 
of  Foot  V.  Tracy,  but  for  particular 
reasons  connected  with  that  case,  he 
forbore  to  express  any  opinion  on  the 
hearing  of  the  same.  In  Paddock  v. 
Salisbury,  2  Cowen,  811,  the  question 
came  again  before  the  Supreme  Court  of 
New  York,  and  the  evidence  was  admit- 
ted in  mitigation  of  damages,  under  the 
general  issue,  which  was  the  only  plea 
in  that  case.]  In  England,  according  to 
the  later  authorities,  evidence  of  the 
general  bad  character  of  the  plaintiff 
seems  to  be  regarded  as  irrelevant,  and 
therefore  inadmissible.  Phil.  &  Am.  on 
Evid.  488,  489 ;  Cornwall  v.  Richardson, 
Ry.  &  Mood.  305 ;  Jones  v.  Stevens,  11 
Price,  235.  In  this  last  case  it  is  ob- 
servable, that  though  the  reasoning  of 
the  learned  judges,  and  especially  of 
Wood,  B.,  goes  against  the  admission 
of  the  evidence,  even  though  it  be'  of  the 
most  general  nature,  in  any  case,  yet  the 
record  before  the  court  contained  a  plea 
of  justification  aspersing  the  professional 
character  of  the  plaintiff  in  general  aver- 
ments, without  stating  any  particular 
acts  of  bad  conduct ;  and  the  point  was, 
whether,  in  support  of  this  plea,  as  well 
as  in  contradiction  of  the  declaration, 
the  defendant  should  give  evidence  that 
the  plaintiff  was  of  general  bad  character 
and  repute,  in  his  practice  and  business 
of  an  attorney.     The  court  strongly  con- 


demned the  pleading  as  reprehensible, 
and  said  that  it  ought  to  have  been  de- 
murred to,  as  due  to  the  court,  and  to 
the  judge  who  tried  the  cause.  See 
J'Anson  v.  Stuart,  1  T.  R,  747 ;  2  Smith's 
Leading  Cases,  37.  See  also  RhcJes  v. 
Punch,  8  McCord,  66.  In  WiUiston  v. 
Smith,  3  Kerr,  443,  which  was  an  action 
for  slander  by  charging  the  defendant 
with  larceny,  the  defendant,  in  mitiga- 
tion of  damages,  offered  evidence  of  the 
plaintiff's  general  bad  character;  which 
the  judge  at  Nisi  Prius  rejected ;  and  the 
court  held  the  rejection  i^-oper;  observ- 
ing that,  had  the  evidence  been  to  the 
plaintiff's  general  characterybr  honesty,  it 
might  have  been  admitted.  [See  post, 
vol.  ii.  §§  424-426,  and  vol.  iii.  §§  25-27, 
for  other  cases  illustrative,  and  also  that 
plaintiff'  can  only  prove  his  good  charac- 
ter when  it  is  attacked.] 

1  Swift's  Evid.  140;  Ross  j^.  Lapham, 
14  Mass.  275;  Douglass  v.  Tousey,  2 
Wend.  352;  Andrews  v.  Vanduzer,  11 
Johns.  38;  Root  v.  King,  7  Cowen,  613; 
Newsam  v.  Carr,  2  Stark.  69  ;  Sawyer  v. 
Eifert,  2  Nott  &  McCord,  911  [Bruce  v. 
Priest,  5  Allen  (Mass.),  100;  Stone  v. 
Varney,  7  Mete.  86;  Leonard  r.  Allen, 
11  Cush.  241,  245;  Watson  v.  Moore,  2 
Id.  133;  Orcutt  v.  Ranney,  10  Id.  183. 
The  best  evidence  of  good  character 
seems  to  be  that  the  witness,  if  thor- 
oughly conversant  with  the  history  of 
the  party  for  years,  never  heard  any 
question  raised  in  regard  to  it.  Gaudolfo 
V.  State,  N.  s.  11  Ohio,  114.  To  prove 
the  bad  character  of  a  horse,  particular 
vicious  acts  may  be  shown.  Whittier  v. 
Franklin,  46  N.  H.  23;  contra  as  to  the 
character  of  a  man.  Reg.  v.  Rowton,  11 
Jur.  N.  s.  325.  Nor  can  the  qualities  of 
value  of  a  horse  be  shown  by  reputation. 
Heath  v.  West,  20  N.  H.  191.] 


76  LAW   OF  EVIDENCE.  [PAET  H. 


CHAPTER  11. 

OF  THE  SUBSTANCE   OF  THE  ISSUE. 

§  56.  Sufficiency  of  evidence.  A  second  rule  wliicli  governs 
in  the  production  of  evidence  is,  that  it  is  sufficient,  if  the  sub- 
stance of  the  issue  be  proved.  In  the  application  of  this  rule,  a 
distinction  is  made  between  allegations  of  matter  of  substance^ 
and  allegations  of  matter  of  essential  description.  The  former 
may  he  substantially  proved ;  but  the  latter  must  be  proved  with 
a  degree  of  strictness,  extending  in  some  cases  even  to  literal  pre- 
cision. No  allegation,  descriptive  of  the  identity  of  that  which 
is  legally  essential  to  the  claim  or  charge,  can  ever  be  rejected.^ 
Thus  in  an  action  of  malicious  prosecution,  the  plaintiff  alleges 
that  he  was  acquitted  of  the  charge  on  a  certain  day ;  here  the 
substance  of  the  allegation  is  the  acquittal,  and  it  is  sufficient,  if 
this  fact  be  proved  on  any  day,  the  time  not  being  material.  But 
if  the  allegation  be,  that  the  defendant  drew  a  bill  of  exchange  of 
a  certain  date  and  tenor,  here  every  allegation,  even  to  the  pre- 
cise day  of  the  date,  is  descriptive  of  the  bill,  and  essential  to  its 
identity,  and  must  be  literally  proved.^  So  also,  as  we  have 
already  seen,  in  justifying  the  taking  of  cattle  damage  feasant, 
because  it  was  upon  the  close  of  the  defendant,  the  allegation  of  a 
general  freehold  title  is  sufficient ;  but  if  the  party  states,  that  he 
was  seised  of  the  close  in  fee,  and  it  be  traversed,  the  precise 
estate,  which  he  has  set  forth,  becomes  an  essentially  descriptive 
allegation,  and  must  be  proved  as  alleged.  In  tliis  case  the  essen- 
tial and  non-essential  parts  of  the  statement  are  so  connected  as  to 
be  incapable  of  separation,  and  therefore  both  are  alike  material.^ 

1  Stark.  Evid.  87.3 ;  Purcell  v.  Macna-  taken  by  Lord  Ellenborough,  in  Purcell  ?'. 
mara,  9  East,  160;  Stoddard  v.  Palmer,  3  Macnamara,  and  recognized  in  Stoddard 
B.  &  C.  4  ;  Turner  i-.  Eylcs,  3  B.  &  P.  v.  Palmer,  3  B.  &  C.  4,  will,  on  closer  ex- 
466;  Ferguson  v.  Ilarwood,  7  Cranch,  amination,  result  merely  in  this,  tliat  mat- 
408,  413  [pout,  vol.  ii.  §  2-111.  ters  of  description  are  matters  of  sub- 

2  3  B.  &  C.  4,  6;  Glassford  on  Evid.  stance,  when  they  go  to  the  identity  of 
309.  any  tiling  material  to  the  action.     Thus 

8  Stephen  on  Pleading,  261,  262,  419;  tlie  rule  will  stand,  as  originally  stated, 

Turner  v.  Eyles,  3  B.  &  P.  450;  2  Saund.  that  the  substance,  and  this  alone,  must 

206  a,  n.  22;    Sir   Francis  Leko's  case,  be  i)roved. 
Dyer,  364  b.     Perhaps   the   distinction 


CHAP,  n.]  THE   SUBSTAITCE   OF   THE  ISSUE. 


77 


§  57.  Matter  of  description.  Whether  an  allegation  is  or  is  not 
so  essentially  descriptive,  is  a  point  to  be  determined  by  the  judge 
in  the  case  before  him ;  and  it  depends  so  much  on  the  particular 
circumstances,  that  it  is  difficult  to  lay  down  any  precise  rules  by 
wliich  it  can  in  all  cases  be  determined.  It  may  depend,  in  the 
first  place,  on  the  nature  of  the  averment  itself,  and  the  subject 
to  which  it  is  applied.  But  secondly,  some  averments  the  law 
pronounces  formal  which  otherwise  would,  on  general  principles, 
be  descriptive.  And  thirdly,  the  question,  whether  others  are 
descriptive  or  not,  will  often  depend  on  the  technical  manner  in 
which  they  are  framed. 

§  58.  Same  subject.  In  the  first  place,  it  may  be  observed  that 
any  allegation  which  narrows  and  limits  that  which  is  essential 
is  necessarily  descriptive.  Thus,  in  contracts,  libels  in  writing, 
and  written  instruments  in  general,  every  part  operates  by  way  of 
description  of  the  whole.  In  these  cases,  therefore,  allegations 
of  names,  sums,  magnitudes,  dates,  durations,  terms,  an^  the  like, 
being  essential  to  the  identity  of  the  writing  set  forth,  must,  in 
general,  be  precisely  proved.^  Nor  is  it  material  whether  the 
action  be  founded  in  contract  or  in  tort ;  for  in  either  case,  if  a 
contract  be  set  forth,  every  allegation  is  descriptive.  Thus,  in  an 
action  on  the  case  for  deceit  in  the  sale  of  lambs  by  two  defend- 
ants, jointly,  proof  of  sale  and  warranty  by  one  only,  as  his  sepa- 
rate property,  was  held  to  be  a  fatal  variance.^  So  also,  if  the 
contract  described  be  absolute,  but  the  contract  proved  be  condi- 
tional, or  in  the  alternative,  it  is  fatal.^  The  consideration  is 
equally  descriptive  and  material,  and  must  be  strictly  proved  as 
alleged.^  Prescriptions,  also,  being  founded  in  grants  presumed 
to  be  lost  from  lapse  of  time,  must  be  strictly  proved  as  laid ;  for 
every  allegation,  as  it  is  supposed  to  set  forth  that  which  was 
originally  contaiijed  in  a  deed,  is  of  course  descriptive  of  the 
instrument,  and  essential  to  the  identity  of  the  grant.^     An  alle- 

1  Bristow  V.  Wright,  Doug.  665,  667  ;  lies  v.  Fettyplace,  7  Mass.  .325 ;  Robbins 
Churchill  j;.Wilkins,lT.R.  447  ;1  Stark,  v.  Otis,  1  Pick.  368;  Harris  v.  Eaynor, 
Evid  .386  388  8  Pick.  541 ;  White  v.  Wilson,  2  Bos.  & 

2  Weal'i.'.  Iving  e(  a?.  12  East,  452.  Pul.    116;    Whitaker   r.  Smith,  4  Pick. 

3  Penny  v.  Porter,  2  East,  2 ;  Lopez  v.  83  ;  Lower  v.  Winters,  7  Cowen,  263 ; 
De  Tastet,  1  B.  &  B.  5-38;  Higgins  v.  Alexander  r.  Harris,  4  Cranch,  299. 
Dixon,  10  Jur.  376;  Hilt  v.  Campbell,  6  *  Sallow  v.  Beaumont,  2  B.  &  Aid.  765; 
Greenl.  109 ;  Stone  v.  Knowlton,  3  Wend.  Robertson  v.  Lynch,  18  Johns.  451  [posty 
374.  See  also  Saxton  v.  Johns6n,  10  §68].  .  m  t,  ic^ 
Johns.  .581 ;  Snell  v.  Moses,  1  Johns.  96 ;  ^  Morewood  v.  Wood,  4  T.  K.  157 ; 
Crawford  v.  Morrell,  8  Johns.  153 ;  Bay-  Rogers  v.  Allen,  1  Campb.  309,  314,  315, 


78  LAW   OF   EVIDENCE.  [PAET  U. 

gation  of  the  character  in  which  the  plaintiff  sues,  or  of  his  title 
to  damages,  thongh  sometimes  superfluous,  is  generally  descrip- 
tive in  its  nature,  and  requires  proof.^ 

§  59.  Formal  averments.  Secondly,  as  to  those  averments  which 
the  law  pronounces  formal,  though,  on  general  principles,  they 
seem  to  be  descriptive  and  essential,  these  are  rather  to  be  re- 
garded as  exceptions  to  the  rule  already  stated,  and  are  allowed 
for  the  sake  of  convenience.  Therefore,  though  it  is  the  nature 
of  a  traverse  to  deny  the  allegation  in  the  manner  and  form  in 
which  it  is  made,  and,  consequently,  to  put  the  party  to  prove  it 
to  be  true  in  the  manner  and  form,  as  well  as  in  general  effect  ;2 
yet  where  the  issue  goes  to  the  point  of  the  action,  these  words, 
onodo  et  forma,  are  but  words  of  form.^  Thus,  in  trover,  for 
example,  the  allegation  that  the  plaintiff  lost  the  goods  and  that 
the  defendant  found  them  is  regarded  as  purely  formal,  requiring 
no  proof;  for  the  gist  of  the  action  is  the  conversion.  So,  in 
indictments  for  homicide,  though  the  death  is  alleged  to  have 
been  caused  by  a  particular  instrument,  this  averment  is  but 
formal ;  and  it  is  sufficient  if  the  manner  of  death  agree  in  sub- 
stance with  that  which  is  charged,  though  the  instrument  be  dif- 
ferent ;  as,  if  a  wound  alleged  to  have  been  given  with  a  sword 
be  proved  to  have  been  inflicted  with  an  axe.*  But,  where  the 
traverse  is  of  a  collateral  point  in  pleading,  there  the  words,  mode 
et  formd,  go  to  the  substance  of  the  issue,  and  are  descriptive, 
and  strict  proof  is  required ;  as,  if  a  feoffment  is  alleged  by  deed, 
which  is  traversed  modo  et  formd,  evidence  of  a  feoffment  with- 
out deed  will  not  suffice.^  Yet,  if  in  issues  upon  a  collateral 
point,  where  the  affirmative  is  on  the  defendant,  partial  and 
defective  proof  on  his  part  should  show  that  the  plaintiff  had  no 
cause  of  action,  as  clearly  as  strict  and  full  proof  would  do,  it  is 
sufficient.*' 

§  60.  If  descriptive,  must  be  proved.     Thirdly,  as  to  those  aver- 

note  (a).     But  proof  of  a  more  ample  '  Trials  per  pa/s,   308  (0th  ed.);    Co. 

right  tiian  is  nlicf^od  will  be  ri-fjarded  as     Lit.  281  b. 

mere  redundancy.    Johnson  v.  Tiioroush-  ■•  2  Russell  on  Crimes,  711 ;  1  East,  P. 

good,  Hob.  (34;  Busiiwood  v.  Pond,  Cro.     C.  341. 

El.  722;  Bailiffs  of  Tewksbury  I'.  Brick-  ^  Bull.   N.   P.  301;    Co.   Lit.    281    b. 

nit,  1  Taunt.   142;  Burges   v.  Steer,  J^K.WIicthcr  virtiitecujus,  in  a  sheriff's  plea  in 

Show.  347 ;  s.  c.  4  Mod.  H'.t  [post,  §  711^KHfctification,  is  traversable,  and  in  what 

1  1  Stark.  Evid.  3!)0  ;  Moises  v.  Th(fl|^^Kes,is  discussed  in  Lucas  v.  Nockells,  7 
ton,  8  T.  K.  303,  308  ;  Berryman  v.  wSKHRTigh,  n.  8.  140. 

4  T.  R.  300.  6  Ibid. ;  2  Stark.  Ev.  394. 

2  Stephen  on  Pleading,  213. 


CHAP,  n.]  THE   SUBSTANCE  OF  THE  ISSUE.  79 

ments,  whose  character,  as  being  descriptive  or  not,  depends  on 
the  trimmer  in  ivhich  they  are  stated.  Every  allegation,  essential 
to  the  issue,  must,  as  we  have  seen,  be  proved,  in  whatever  form 
it  be  stated ;  and  things  immaterial  in  their  nature  to  the  ques- 
tion at  issue  may  be  omitted  in  the  proof,  though  alleged  with 
the  utmost  explicitness  and  formality.  There  is,  however,  a 
middle  class  of  circumstances,  not  essential  in  their  nature,  which 
may  become  so  by  being  inseparably  connected  with  the  essential 
allegations.  These  must  be  proved  as  laid,  unless  they  are  stated 
under  a  videlicet ;  the  office  of  which  is  to  mark,  that  the  party 
does  not  undertake  to  prove  the  precise  circumstances  alleged ; 
and  in  such  cases  he  is  ordinarily  not  holden  to  prove  them.^ 
Thus  in  a  declaration  upon  a  bill  of  exchange,  the  date  is  in  its 
nature  essential  to  the  identity  of  the  bill,  and  must  be  precisely 
proved,  though  the  form  of  allegation  were,  "  of  a  certain  date, 
to  wit,"  such  a  date.  On  the  other  hand,  in  the  case  before  cited, 
of  an  action  for  maliciously  prosecuting  the  plaintiff  for  a  crime 
whereof  he  was  acquitted  on  a  certain  day,  the  time  of  acquittal 
is  not  essential  to  the  charg^fand  need  not  be  proved,  though  it 
be  directly  and  expressly  alleged.^  But  where,  in  an  action  for 
breach  of  warranty  upon  the  sale  of  personal  chattels,  the  plain- 
tiff set  forth  the  price  paid  for  the  goods,  without  a  videlicet^  he 
was  held  bound  to  prove  the  exact  sum  alleged,  it  being  rendered 
material  by  the  form  of  allegation ;  ^  though,  had  the  averment 
been  that  the  sale  was  for  a  valuable  consideration,  to  tvit,  for  so 
much,  it  would  have  been  otherwise.  A  videlicet  will  not  avoid 
a  variance,  or  dispense  with  exact  proof,  in  an  allegation  of  mate- 
rial matter ;  nor  will  the  omission  of  it  always  create  the  necessity 
of  proving,  precisely  as  stated,  matter  which  would  not  other- 
wise require  exact  proof.  But  a  party  may,  in  certain  cases, 
impose  upon  himself  the  necessity  of  proving  precisely  what  is 
stated,  if  not  stated  under  a  videlicet.^ 

1  Stephen  on  Pleading,  309  ;  1  Chitty  Pleading,  419,  420;  1  Chitty  on  PI.  340 
on  PI.  261,  262,  348  (6th  ed. ) ;  Stukeley  v.     (6th  ed.). 

Butler,  Hob.  168,  172 ;  2  Saund.  201,  note  *  Crispin  v.  Williamson,  8  Taunt.  107, 

(1)  ;  Gleason  v.  McVickar,  7  Cowen,  42.  112  ;  Attorney-General  v.  Jeffreys,  M'Cl. 

2  Supra,  §  56;  Pureed  v.  Macnamara,  277;  2  B.  &  C.  3,  4;  1  Chitty  on  Plead. 
9  East,  160  ;  Gwinnett  v.  Phdlips,  3  T.  R.  348  a  ;  Grimwood  v.  Barrett,  6  T.  R.  460, 
643  ;  Vail  v.  Lewis,  4  Johns.  450.  46.3  ;  Bristow  v.  Wright,  Doug.  667,  66g. 

3  Durston  v.  Tuthan,  cited  in  3  T.  R.  These  terms,  "  immaterial,"  and  "  iniper- 
67  ;  Symmons  v.  Knox,  3  T.  R.  65;  Arn-  tinent,"  though  formerly  applied  to  two 
fieid  V.  Bates,  3  M.  &  S.  173  ;  Sir  Francis  classes  of  averments,  are  now  treated  as 
Leke's  case,  Dyer,  364  6;    Stephen  on  synonymous  (3  D.  &  R.  209);  the  more 


80 


LAT7   OF   EVIDENCE. 


[PAP.T  n. 


§  61.  Time,  place,  quantity,  value,  &c.  But,  ill  general,  the  alle- 
gations of  time^  jt^Zace,  quantity,  quality^  and  value,  when  not 
descriptive  of  the  identity  of  the  subject  of  the  action,  will  be 
found  immaterial,  and  need  not  be  proved  strictly  as  alleged. 
Thus,  in  trespass  to  the  person,  the  material  fact  is  the  assault  and 
battery ;  the  time  and  place  not  being  material,  unless  made  so  by 
the  nature  of  the  justification,  and  the  manner  of  pleading.  And, 
in  an  action  on  a  policy  of  insurance,  the  material  allegation  is  the 
loss ;  but  Avhether  total  or  partial  is  not  material ;  and  if  the 
former  be  alleged,  proof  of  the  latter  is  sufficient.  So  in  assump- 
sit, an  allegation  that  a  bill  of  exchange  was  made  on  a  certain 
day  is  not  descriptive,  and  therefore  strict  proof,  according  to 
the  precise  day  laid,  is  not  necessary;  though,  if  it  were  stated 
that  the  bill  lore  date  on  that  day,  it  would  be  otherwise. ^  Thus, 
also,  proof  of  cutting  the  precise  number  of  trees  alleged  to  have 
been  cut,  in  trespass ;  or,  of  the  exact  amount  of  rent  alleged  to 
be  in  arrear  in  replevin ;  or  the  precise  value  of  the  goods  taken, 
in  trespass  or  trover,  is  not  necessary.^  Neither  is  matter  of 
aggravation,  namely,  that  which  only  tends  to  increase  the 
damages,  and  does  not  concern  the  right  of  action  itself,  of  the 
substance  of  the  issue.  But,  if  the  matter,  alleged  by  Avay  of 
aggravation,  is  essential  to  the  support  of-  the  charge  or  claim,  it 
must  be  proved  as  laid. 

§  62.  Place  in  local  actions.      But  in  local  actions  the  allegation 


accurate  distinction  being  between  these, 
and  unncc.essiirij  allegations.  Imniatfrial 
or  impertinent  averments  are  those  wliicli 
need  neither  be  alleged  nor  proved  if  al- 
leged. Unnecessary  averments  consist  of 
matters  which  need  not  be  alleged  ;  but, 
being  alleged,  must  be  proved.  Thus,  in 
an  action  of  assumpsit  u])on  a  warranty 
on  the  sale  of  goods,  an  allegation  of  de- 
ceit on  the  part  of  the  seller  is  imperti- 
nent, and  need  not  be  proved.  William- 
son V.  Allison,  2  East,  41G;  Panton  v. 
Holland,  17  Johns.  ('2  ;  Twiss  v.  Baldwin, 
0  Conn.  2!'2.  So,  where  the  action  was 
for  an  injury  to  the  plaintiff's  reversion- 
ary interest  in  land,  and  it  was  alleged 
that  the  close,  at  the  time  of  the  injury, 
was,  and  "  continually  from  thence 
hitlierto  liath  been,  ami  still  is,"  in  the 
possession  of  one  J.  V.,  this  latter  part  of 
the  averment  was  held  supertUunis,  and 
not  necessary  to  he  proved.  Vowels  v. 
Miller,  3  Taunt.  137.  But  if,  in  an  action 
by  a  lessor  against  his  tenant,  for  negli- 


gently keeping  his  fire,  a  demise  for  acjjen 
years  be  alleged,  and  the  proof  be  of  a  lease 
at  will  only,  it  will  be  a  fatal  variance  ; 
for  though  it  would  have  sufficed  to  have 
alleged  tlie  tenancy  generally,  yet  having 
uimecessarily  qualified  it,  by  stating  the 
precise  term,  it  must  be  proved  as  laid. 
Cudlij)  7\  Bundle,  Carth.  202.  So,  in 
debt  against  an  officer  for  extorting  ille- 
gal fees  on  a  jicri  facias,  though  it  is  suf- 
ficient to  allege  the  issuing  of  the  writ  of 
Jieri  facias,  yet  if  the  plaintiff  also  un- 
necessarily allege  the  judgment  on  which 
it  was  founded,  he  must  prove  it,  having 
made  it  descrijUiveof  the  ])rincii>al  thing. 
Savage  v.  Smith,  2  W.  Bl.  IKU  ;  Bristow 
V.  Wright,  Doug.  (J08 ;  (Jouhl's  PI.  KK)- 
165;  Draper  v.  Garratt,  2  B.  &  C.  2. 
[See  also  post,  §  05.] 

1  Gardiner  i'.  Croadales,  2  Burr.  904  ; 
Coxon  !'.  Lv(in,  2  Campl).  :507,  n. 

2  Harrison  r.  Barn  by,  5  T.  B.  248  ;  Co. 
Lit.  282  a;  Stephen  on  Pleading.  ^18; 
Hutchins  v.  Adams,  3  Greenleaf,  174. 


CHAP.  II.]  THE  SUBSTANCE   OF  THE  ISSUE.  81 

of  place  is  material,  and  must  strictly  be  proved,  if  put  in  issue. 
In  real  actions,  also,  the  statement  of  quality,  as  arable  or  pasture 
land,  is  generally  descriptive,  if  not  controlled  by  some  other  and 
more  specific  designation.  And  in  these  actions,  as  well  as  in 
those  for  injuries  to  real  property,  the  abuttals  of  the  close  in 
question  must  be  proved  as  laid ;  for  if  one  may  be  rejected,  all 
may  be  equally  disregarded,  and  the  identity  of  the  subject  be 
lost.i 

§  63.  Variance.  It  being  necessary  to  prove  the  substance  of 
the  issue,  it  follows  that  any  departure  from  the  substance,  in 
the  evidence  adduced,  must  be  fatal ;  constituting  what  is  termed 
in  the  law  a  variance.  This  may  be  defined  to  be  a  disagreement 
between  the  allegation  and  the  proof,  in  some  matter  wMch,  in 
point  of  law,  is  essential  to  the  charge  or  claim.^  It  is  the  legal, 
and  not  the  natural,  identity  which  is  regarded ;  consisting  of 
those  particulars  only,  which  are  in  their  nature  essential  to  the 
action,  or  to  the  justification,  or  have  become  so  by  being  insepa- 
rably connected,  by  the  mode  of  statement,  with  that  which  is 
essential ;  of  which  an  example  has  already  been  given,^  in  the 
allegation  of  an  estate  in  fee,  when  a  general  averment  of  free 
hold  would  suffice.  It  is  necessary,  therefore,  in  these  cases,  first 
to  ascertain  what  are  the  essential  elements  of  the  legal  proposi- 
tion in  controA'ersy,  taking  care  to  include  all  which  is  indis- 
pensable to  show  the  right  of  the  plaintiff,  or  party  affirming. 
The  rule  is,  that  whatever  cannot  be  stricken  out  without  getting 
rid  of  a  part  essential  to  the  cause  of  action,  must  be  retained, 
and  of  course  must  be  proved,  even  though  it  be  .described  with 
unnecessary  particularity.*  The  defendant  is  entitled  to  the 
benefit  of  this  rule,  to  protect  himself  by  the  verdict  and  judg- 
ment, if  the  same  rights  should  come  again  in  controversy.  The 
rule,  as  before  remarked,  does  not  generally  apply  to  allegations 
of  number,  magnitude,  quantity,  value,  time,  sums  of  money,  and 
the  like,  provided  the  proof  in  regard  to  these  is  sufficient  to  con- 
stitute the  offence  charged,  or  to  substantiate  the  claim  set  up ; 
except  in  those  cases  where  they  operate  by  way  of  limitation,  or 

1  Mersev  &  Irwoll  Nav.  Co.  v.  Douglas,  2  Stephen  on  PI.  107,  108. 

2  East,  497,  502  ;  Bull.  N.  P.  89 ;  Vowels  3  Supra,  §  51-56. 

V.  Miller,  3  Taunt.  139,  per  Lawrence,  J. ;  *  Bristow  v.  Wright,  Doug.  668 ;  Pep- 

■Regina   v.  Crannge,  1    Salk.  385.     [See  pin  v.  Solomons,  5  T.  R.  490;  William- 

post,  vol.  ii.  §  618  a.]  son  v.  Allison,  2  East,  446,  452. 

VOL.   I.  6 


82 


LAW   OF  EVIDENCE. 


[part  n. 


description  of  other  matters,  in  themselves  essential  to  the  offence 
or  claim.  1 

§  64.  Variance.  A  few  examples  will  suffice  to  illustrate  this 
subject.  Thus,  in  tort,  for  removing  earth  from  the  defendant's 
land,  whereby  the  foundation  of  the  plaintiff's  house  was  injured, 
the  allegation  of  bad  intent  in  the  defendant  is  not  necessary  to 
be  proved,  for  the  cause  of  action  is  perfect,  independent  of  '.he 
intention.2  So,  in  trespass,  for  driving  against  the  plaintiff's  cart, 
the  allegation  that  he  was  in  the  cart  need  not  be  proved.^  But, 
if  the  allegation  contains  matter  of  description,  and  is  not  proved 
as  laid,  it  is  a  variance,  and  is  fatal.  Thus,  in  an  action  for  mali- 
cious prosecution  of  the  plaintiff,  upon  a  charge  of  felony,  before 
Baron  Waterpark  of  Waterfork^  proof  of  such  a  prosecution  before 
Baron  Waterpark  of  Waterpark  was  held  to  be  fatally  variant 
from  the  declaration.*  So,  in  an  action  of  tort  founded  on  a  con- 
tract, every  particular  of  the  contract  is  descriptive,  and  a  vari- 
ance in  the  proof  is  fatal.  As,  in  an  action  on  the  case  for  deceit, 
in  a  contract  of  sale,  made  by  the  two  defendants,  proof  of  a  sale 
by  one  of  them  only,  as  his  separate  property,  was  held  insuffi- 
cient ;  for  the  joint  contract  of  sale  was  the  foundation  of  the 
joint  warranty  laid  in  the  declaration,  and  essential  to  its  legal 
existence  and  validity.^ 

§  Q^i.  In  criminal  cases.  In  criminal  prosecutions^  it  has  been 
thought  that  greater  strictness  of  proof  was  required  than  in  civil 
cases,  and  that  the  defendant  might  be  allowed  to  take  advantage 


1  Supra,  §  01 ;  Rickets  v.  Salwev,  2  B. 
&  Aid.  :363 ;  May  v.  Brown,  3  B.  &  C.  113, 
122.  It  has  been  said  that  allegations, 
which  are  merely  iiidtters  nf  indncement ,  do 
not  require  such  strict  proof  as  those 
wliicli  are  |)recisely  i)at  in  issue  l)et\vecu 
the  parties.  Smith  v.  Tnylor,  1  New  liep. 
210,  y)er  CJiiambre.J.  But  this  distinction, 
as  Mr.  vStarkie  justly  observes,  between 
tiiat  whicii  is  the  pist  of  tiie  action  nnd 
that  whicli  is  inducement,  is  not  always 
clear  in  principle.  1  Stark.  Evid.  3!)1, 
n.  (b)  ;  ?5  Stark.  F,vid.  liGl,  n.  (x)  Met- 
calf's  ed.  Certainly  that  whicli  mjiy  be 
traversed,  must  be  proved,  if  it  is"  not 
admitted  ;  and  some  facts,  even  thouph 
Plated  in  the  form  of  inducement,  niaj-  he 
traver.'sed,  l)e(;ause  they  are  material  ;  as, 
for  example,  in  acMion  for  slander,  ujxui  a 
chnrf(e  for  perjury,  wiiere  the  plaintid' al- 
leged, by  way  of  inducement,  that  he  was 
sworn  before  tiie  Lord  Mayor.  Stephen  on 
rieading,  208.     The  question  whether  au 


allegation  must  be  proved,  .or  not,  turns 
upon  its  materiality  to  the  case,  and  not 
upon  tlie  form  in  whicii  it  is  stated,  or  its 
place  in  the  declaration.  In  general,  every 
allegation  in  an  inducement,  whicii  is 
material,  and  not  inijjcrtinent,  and  foreign 
to  the  case,  and  which  consequently  can- 
not be  rejected  as  sur])lii.sage,  must  be 
proved  as  alleged.  1  Chitty  on  PI.  262, 
320.  It  is  true  that  those  matters  which 
need  not  be  alU'ged  witii  ])articu]arity, 
neeil  not  be  proveii  with  jjarticularity, 
but  still,  all  allegations,  if  material,  must 
be  proved  substantially  as  a/li'i/i'd. 

=^  Panton  v.  Holland,  17  Johns.  92; 
Twiss  V.  Baldwin,  9  Conn.  201. 

*•  Howard  v.  I'eete,  Chitty,  315. 

*  Walters  v.  Mace,  2  B.  &  Aid. 
756. 

"  Weall  V.  King  et  ah,  12  East,  452; 
Lopes  V.  De  Tastet,  1  Ji.  &  B.  5;;8.  [See 
Ashley  v.  Wolcott,  11  Cush.  H)2.J 


CHAP,  n.]  THE   SUBSTAISTCE   OF   THE   ISSTJE.  83 

of  nicer  exceptions.^  But  whatever  indulgence  the  humanity  and 
tenderness  of  judges  may  have  allowed  in  practice,  in  favor  of  life 
or  liberty,  the  better  opinion  seems  to  be  that  the  rules  of  evidence 
are  in  both  cases  the  same.^  If  the  averment  is  divisible,  and 
enough  is  proved  to  constitute  the  offence  charged,  it  is  no  vari- 
ance, though  the  remaining  allegations  are  not  proved.  Thus,  an 
indictment  for  embezzling  two  bank-notes  of  equal  value  is  sup- 
ported by  proof  of  the  embezzlement  of  one  only.^  And  in  an 
indictment  for  obtaining  money  upon  several  false  pretences,  it  is 
Bufificient  to  prove  any  material  portion  of  them.*  But  where  a 
person  or  thing,  necessary  to  be  mentioned  in  an  indictment,  is 
described  with  unnecessary  particidarity,  all  the  circumstances  of 
the  description  must  be  proved ;  for  they  are  all  made  essential 
to  the  identity.  Thus,  in  an  indictment  for  stealing  a  black  horse, 
the  animal  is  necessarily  mentioned,  but  the  color  need  not  be 
stated ;  yet  if  it  is  stated,  it  is  made  descriptive  of  the  particular 
animal  stolen,  and  a  variance  in  the  proof  of  the  color  is  fatal. ^ 
So,  in  an  indictment  for  stealing  a  bank-note,  though  it  would  be 
sufficient  to  describe  it  generally  as  a  bank-note  of  such  a  denom- 
ination or  value,  yet,  if  the  name  of  the  officer  who  signed  it  be 
also  stated,  it  must  be  strictly  proved.^  So,  also,  in  an  indictment 
for  murder,  malicious  shooting,  or  other  offence  to  the  person,  or 
for  an  offence  against  the  habitation,  or  goods,  the  name  of  the 
person  who  was  the  subject  of  the  crime,  and  of  the  owner  of  the 
house  or  goods,  are  material  to  be  proved  as  alleged.'^     But  where 

1  Beech's  case,  1  Leach's  Cas.  158;  crowns;  it  was  held,  that  it  was  not  sup- 
United  States  V.  Porter,  3  Day,  283,  286.  ported  by  evidence  of  stealing  a  sum  of 

2  Roscoe's  Crim.  Evid.  73;  1  Deacon's  vioney  consisting  of  some  of  the  coins 
Dig.  Crim.  Law,  459,  460.  And  see  2  mentioned  in  the  indictment,  witiiout 
East,  P.  C.  785,  1021  ;  1  Phil.  Evid.  506  ;  proof  of  some  one  or  more  of  the  specific 
Rex  V.  Watson,  2  Stark.  116,  155,  per  coins  charged  to  have  been  stolen.  Re- 
Abbott,  J.;  Lord  Melville's  case,  29  How-  gina  v.  Bond,  1  Den.  Cr.  Cas.  517;  14 
ell's  St.  Tr.  370 ;  2  Rnssell  on  Crimes,  Jur.  390.  [The  value  of  several  articles, 
588;  United  States  v.  Britton,  2  Mason,  all  of  the  same  kind,  may  be  alleged  col- 
464,  4G8.  [Kline  v.  Baker,  106  Mass.  61.  lectively,  if  all  are  proved.  Com.  v. 
And  see  also  post,  vol.  ii.  §  426.]  Falvey,  108  Mass.  304.     But,  if  a  part 

3  Carson's  case,  Russ.  &  Ry.  303 ;  only  are  proved,  the  collective  value  is 
Eurneaux's  case.  Id.  335;  Tyer's  case,  insufficient,  as  those  not  proved  may 
Id.  402.  have  constituted  the  entire  value.     Com. 

i  Hill's  case,  Russ.  &  Rv.  190.  v.  Lavery,  101  Mass.  207.] 

5  1  Stark.  Evid.  374.  [State  v.  Jack-  '  Clark's  case,  Russ.  &  Ry.  358 ; 
son,  SO  Maine,  29 ;  Rex  v.  Darley,  1  Moody  White's  case,  1  Leach's  Cas.  286  ;  Jenks's 
C.  C.  303.]  case,  2  East,  P.  C.  514;  Durore's  case,  1 

6  Craven's  case,  Russ.  &  Ry.  14.  So,  Leach's  Cas.  390.  But  a  mistake  in  spell- 
where  the  charge  in  an  indictment  was  of  ing  the  name  is  no  variance,  if  it  be  idem 
stealing  70  pieces  of  the  current  coin  sonans  with  the  name  proved.  Williams 
called  sovereigns,  and  140  pieces  called  v.  Ogle,  2  Stra.  889 ;  Foster's  case,  Russ.  & 
half  sovereigns,  and   500   pieces  called  Ry.  412 ;  Tannet's  case,  Id.  351;  Bingham 


84  LAW  OF  EVIDENCE.  [PART  U. 

the  time,  place,  person,  or  other  circumstances,  are  not  descriptive 
of  the  fact  or  degree  of  the  crime,  nor  material  to  the  jurisdiction, 
a  discrepancy  between  the  allegation  and  the  proof  is  not  a  vari- 
ance. Such  are  statements  of  the  house  or  field  where  a  robbery 
was  committed,  the  time  of  the  day,  the  day  of  the  term  in  which 
a  false  answer  in  chancery  was  filed,  and  the  like.^  In  an  indict- 
ment for  murder,  the  substance  of  the  charge  is  that  the  prisoner 
feloniously  killed  the  deceased  by  means  of  shooting,  poisoning, 
cutting,  blows,  or  bruises,  or  the  like ;  it  is,  therefore,  sufficient, 
if  the  proof  agree  with  the  allegation  in  its  substance  and  general 
character  without  precise  conformity  in  every  particular.  In 
other  words,  an  indictment  describing  a  thing  by  its  generic  term 
is  supported  by  proof  of  a  species  which  is  clearly  comprehended 
within  such  description.  Thus,  if  the  charge  be  of  poisoning  by 
a  certain  drug,  and  the  proof  be  of  poisoning  by  another  drug ; 
or  the  charge  be  of  felonious  assault  with  a  staff,  and  the  proof 
be  of  such  assault  with  a  stone ;  or  the  charge  be  of  a  wound  with 
a  sword,  and  the  proof  be  of  a  wound  with  an  axe  ;  yet  the  charge 
is  substantially  proved,  and  there  is  no  variance.^  But  where 
the  matter,  whether  introductory  or  otherwise,  is  descriptive,  it 
must  be  proved  as  laid,  or  the  variance  will  be  fatal.  As,  in  an 
indictment  for  perjury  in  open  court,  the  term  of  the  court  must 
be  truly  stated  and  strictly  proved.^  So,  in  an  indictment  for 
perjury  before  a  select  committee  of  the  House  of  Commons,  in  a 
contested  election,  it  was  stated  that  an  election  was  holden  by 
virtue  of  a  precept  duly  issued  to  the  bailiff  of  the  borough  of 
New  Malton,  and  that  A  and  B  were  returned  to  serve  as  mem- 
bers for  the  said  borough  of  New  Malton  ;  but  the  writ  appeared 
to  be  directed  to  the  bailiff  of  Malton.     Lord  Ellenboroudi  held 

o 

V.  Dickie,  5  Taunt.  814.     So,  if  one  be  in-  stealing  of  any  sex  or  variety  of  that  ani- 

dictt'd  for  an  assault  upon  A.  B.,  a  deputy-  mal ;  for  the  term  is  nomen  generdlissimum. 

Blieriff,  and  in  the  officer's  commission  he  M'Cully's  case,  2  Lew.  C.  C.  272 ;  Hegina 

is  styled  A.  B.  junior,  it  is  no  variance  v.  Spicer,  1  Dennis.  C.  C.  82.     So,  if  tlie 

if  the  person  is  proved  to  be  the  same,  cliarge  be  of  deatii  by  sullocation,  by  the 

CDMimouwealtii   i;.  Ueckley,  3   Metcalf,  hand  over  the  mouth,  and  tlie  proof  be 

3-iO.  that  respiration  was  stopped,  though  by 

MVardle's   case,  2   East,  P.  C.  785;  some  other  violent  mode  of  strangulation, 

Pye's  case,  lb. ;  Johnstone's  case.  Id.  786  ;  it  is  sufficient.     Ke.\  v.  Waters,  7  C.  &  P. 

Minton's  case,  Id.  1021 ;  Rex  v.  Waller,  2  250  [Commonwealth  v.  Webster,  5  Cush. 

Stark.  Evid.  623;  Kex  v.  Hucks,  1  Stark.  321.  323). 
621.  3  Where  the  term  is  designated  by  the 

■2  1  East,  P.  C.  341;  Martin's  case,  5  day  of  the  montli,  as  in  the  Circuit  Courts 

Car.  &  P.   128;  Culkin's  case.  Id.  121;  of  the  United  States,  the  precise  day  is 

supra,  §  58.     An  indictment  for  stealing  material.      United  States  v.  McXeal,  1 

"  a  sheep  "  is  supported  by  proof  of  the  Gall.  387. 


CHAP,  n.]  TELE   SUBSTAIfCE  OF  THE  ISSUE.  85 

this  not  matter  of  description  ;  and  the  precept  having  been  actu- 
ally issued  to  the  bailiff  of  the  borough  of  New  Malton,  it  was 
sufficient.  But  the  return  itself  was  deemed  descriptive  ;  and  the 
proof  being  that  the  members  were  in  fact  returned  as  members 
of  the  borough  of  Malton,  it  was  adjudged  a  fatal  variance. ^  So, 
a  written  contract,  when  set  out  in  an  indictment,  must  be  strictly 
proved.2 

§  6Q.  In  contracts.  Thus,  also,  in  actions  upon  contract,  if  any 
part  of  the  contract  proved  should  vary  materially  from  that 
which  is  stated  in  the  pleadings,  it  will  be  fatal ;  for  a  contract  is 
an  entire  thing,  and  indivisible.  It  will  not  be  necessary  to  state 
all  the  parts  of  a  contract  which  consists  of  several  distinct  and 
collateral  provisions ;  the  ffravameri  is,  that  a  certain  act  which 
the  defendant  engaged  to  do  has  not  been  done ;  and  the  legal 
proposition  to  be  maintained  is,  that,  for  such  a  consideration,  he 
became  bound  to  do  such  an  act,  including  the  time,  manner,  and 
other  circumstances  of  its  performance.  The  entire  consideration 
must  be  stated,  and  the  entire  act  to  be  done,  in  virtue  of  such 
consideration,  together  with  the  time,  manner,  and  circumstances  ; 
and  with  all  the  parts  of  the  proposition,  as  thus  stated,  the  proof 
must  agree.^  If  the  allegation  be  of  an  absolute  contract,  and  the 
proof  be  of  a  contract  in  the  alternative,  at  the  option  of  the  de- 
fendant ;  or  a  promise  be  stated  to  deliver  merchantable  goods, 
and  the  proof  be  of  a  promise  to  deliver  goods  of  a  second  quality  ; 
or  the  contract  stated  be  to  pay  or  perform  in  a  reasonable  time, 
and  the  proof  be  to  pay  or  perform  on  a  day  certain,  or  on  the 
happening  of  a  certain  event ;  or  the  consideration  stated  be  one 
horse,  bought  by  the  plaintiff  of  the  defendant,  and  the  proof  be 
of  two  horses ;  in  these  and  the  like  cases,  the  variance  will  be 
fatal.4 

1  Rex  V.  Leefe,  2  Campb.  134,  140.  tion  set  forth  an  executory  agreement 

2  2  East,  P.  C.  977,  978,  981,  982 ;  of  the  defendant  to  do  certain  work  for  a 
Commonwealth  v.  Parmenter,  5  Pick,  certain  sum,  and  within  a  certain  time,  on 
279;  The  People  v.  Franklin,  3  Johns,  materials  to  be  furnished  by  the  plaintiff, 
299.  and  alleged  that  the  plaintiff  did  furnish 

3  Clarke  v.  Gray,  6  East,  564,  567,  568;  the  materials  to  the  defendant  in  season 
Gwinnett  v.  Phillips,  3  T.  R.  643,  646;  for  him  to  complete  the  stipulated  work 
Thornton  v.  Jones,  2  Marsh.  287  ;  Parker  within  the  stipulated  lime,  and  the  proof 
V.  Palmer,  4  B.  &  A.  387;  Swallow  v.  was  that  the  plaintiff  had  not  performed 
Beaumont,  2  B.  &  A.  765.  in  full  his  agreement,  but  that  he  was  ex- 

*  Penny  v.  Porter,  2  East,  2 ;  Bristow  cused  from  the  performance  thereof  Ly 

V.  Wright,  2  Doug.  665 ;  Hilt  v.  Campbell,  the  waiver  of  the  defendant ;  the  variance 

6Greenl.  109;  Symondsw.  Carr,  1  Campb.  was  held  fatal.     Colt  v.  Miller,  10  Cush. 

861 ;  King  v.  Robinson,  Cro.  El.  79.     See  49, 51 ;  see  also  Metzner  v  Bolton,  24  Eng. 

post,  vol.  ii.  §  11  d.     [Where  the  declara-  Law  &  Eq.  637.    And  where  the  declara- 


86 


LAW   OF   EVIDENCE. 


[PAET  n. 


§  67.  Redundancy  of  allegation,  sind  of  proof  There  is,  however, 
a  material  distinction  to  be  observed  between  the  redundancy  in 
the  allegation,  and  redundancy  only  in  the  proof.  In  the  former 
case,  a  variance  between  the  allegations  and  the  proof  will  be 
fatal,  if  the  redundant  allegations  are  descriptive  of  that  which  is 
essential.  But  in  the  latter  case,  redundancy  cannot  vitiate, 
merely  because  more  is  proved  than  is  alleged  ;  unless  the  matter 
superfluously  proved  goes  to  contradict  some  essential  part  of  the 
allegation.  Thus,  if  the  allegation  were  that,  in  consideration  of 
<£100,  the  defendant  promised  to  go  to  Rome,  and  also  to  deliver 
a  certain  horse  to  the  plaintiff,  and  the  plaintiff  should  fail  in 
j)roving  the  latter  branch  of  the  promise,  the  variance  would  be 
fatal,  though  he  sought  to  recover  for  the  breach  of  the  former 
only,  and  the  latter  allegation  was  unnecessary.  But,  if  he  had 
alleged  only  the  former  branch  of  the  promise,  the  proof  of  the 
latter  along  with  it  would  be  immaterial.  In  the  first  case,  he 
described  an  undertaking  which  he  has  not  proved ;  but  in  the 
latter,  he  has  merely  alleged  one  promise,  and  proved  that,  and 
also  another.! 

§  68.  Consideration.  But  where  the  subject  is  entire,  as,  for 
example,  the  consideration  of  a  contract,^  a  variance  in  the  proof, 
as  we  have  just  seen,  shows  the  allegation  to  be  defective,  and  is, 
therefore,  material.     Thus,  if  it  were  alleged  that  the  defendant 


tion  alleged  an  authority  to  one  G.  W., 
trading  as  G.  W.  &  Co.,  to  sell  goods  as 
the  goods  of  G.  W.,and  the  proof  was  of 
an  authority  to  G.  W.  to  sell  the  goods 
as  the  goods  of  G.  W.  &  Co.,  the  variance 
was  held  fatal.  Addington  v.  Magan,  2 
Eng.  Law  &  Eq.  327.  A  declaration  set- 
ting out  a  note  payable  "  without  defal- 
cation or  discount"  is  not  supported  by 
proof  of  a  note  payable  "  without  de- 
falcation." Addis  V.  Van  Buskirk,  4 
Zahr.  218.  AViiere  a  note  was  described 
in  tlie  declaration  as  payable  "on  or 
before "  a  certain  day,  and  the  proof 
was  that  it  was  payable  "on"  the  day 
named,  it  was  held  no  variance.  Morton 
('.  Teiiny,  16  111.  404;  see  also  Walker  v. 
Welch,  14  111.  277.  The  declaration  was 
on  a  i)roinise  to  pay  money  on  demand ; 
the  proof  was  a  promise  to  pay  in  com- 
modities ;  and  it  was  held  to  be  a  variance. 
Titus  V.  Ash,  4  Foster,  N.  II.  .310.  So  a 
declaration  on  a  note  not  alleged  to  be 
upon  interest  is  not  sustained  by  proof  of 
a  note  in  other  respects  similar,  but  draw- 
ing interest.  Gragg  v.  Frye,  32  Maine, 
283.     There  can  be  no  doubt  of  the  ad- 


missibility of  a  written  contract  in  evi- 
dence to  prove  the  contract  declared  on, 
though  the  declaration  does  not  aver  that 
it  was  in  writing.  It  is  generally  unneces- 
sary in  declaring  on  a  simple  contract  in 
writing  to  allege  it  to  be  so.  This  allega- 
tion is  not  required  even  in  declarations 
on  contracts  that  are  within  the  statute 
of  frauds.  Fiedler  v.  Smith,  0  Cush.  340 ; 
see  Irvine  i;.  Stone,  lb.  508.] 

^  Stark.  Evid.  401.  Where  tlie  agree- 
ment, as  in  this  case,  contains  several  dis- 
tinct promises,  and  for  the  breach  of  one 
only  the  action  is  brought,  the  conse- 
quences of  a  variance  may  be  avoided  by 
alleging  the  promise,  as  made  irtter  ahd. 
And  no  good  reason,  in  principle,  is  per- 
ceived, why  the  case  mentioned  in  the 
following  section  might  not  be  treated  in 
asimilar  manner ;  but  the  authorities  are 
otherwise.  In  the  example  given  in  the 
text,  the  allegation  is  supposed  to  import 
that  the  undertaking  consisted  of  neither 
more  nor  less  than  is  alleged. 

2  Swallow  V.  Beaumont,  2  B.  &  A. 
765;  White  v.  Wilson,  2  B.  &  P.  116; 
supra,  §  58. 


CHAP.  II.]  THE   SUBSTANCE   OF   THE  ISSUE.  87 

promised  to  i^ay  XlOO,  in  consideration  of  the  plaintiff's  going  to 
Rome,  and  also  delivering  a  horse  to  the  defendant,  an  omission  to 
prove  the  whole  consideration  alleged  would  be  fatal.  And  if  the 
consideration  had  been  alleged  to  consist  of  the  going  to  Rome 
only,  yet  if  the  agreement  to  deliver  the  horse  were  also  proved, 
as  forming  part  of  the  consideration,  it  would  be  equally  fatal ; 
the  entire  thing  alleged,  and  the  entire  tiling  proved,  not  being 
identical.^  Upon  the  same  principle,  if  the  consideration  alleged 
be  a  contract  of  the  plaintiff  to  build  a  ship,  and  the  proof  be  of 
one  to  finish  a  ship  partly  built ;  ^  or  the  consideration  alleged  be 
the  delivery  of  pine  timber,  and  the  proof  be  of  spruce  timber ;  ^ 
or  the  consideration  alleged  be,  that,  the  plaintiff  would  indorse 
a  note,  and  the  proof  be  of  a  promise  in  consideration  that  he  had 
indorsed  a  note  ;  *  the  variance  is  equally  fatal.  But  though  no 
part  of  a  valid  consideration  may  be  safely  omitted,  yet  that  which 
is  merely  frivolous  need  not  be  stated ;  ^  and,  if  stated,  need  not 
be  proved ;  for  the  court  will  give  the  same  construction  to  the 
declaration  as  to  the  contract  itself,  rejecting  that  which  is  non- 
sensical or  repugnant.^ 

§  69.  Deeds.  In  the  case  of  deeds,  the  same  general  principles 
are  applied.  If  the  deed  is  declared  upon,  every  part  stated  in 
the  pleadings,  as  descriptive  of  the  deed,  must  be  exactly  proved,  or 
it  will  be  a  variance  ;  and  this,  whether  the  parts  set  out  at  length 
were  necessary  to  be  stated  or  not.''  If  a  qualified  covenant  be 
set  out  in  the  declaration  as  a  general  covenant,  omitting  the 
exception  or  limitation,  the  variance  between  the  allegation  and 
the  deed  will  be  fatal.  If  the  condition,  proviso,  or  limitation 
affects  the  original  cause  of  action  itself,  it  constitutes  an  essential 
element  in  the  original  proposition  to  be  maintained  by  the  plain- 
tiff;  and,  therefore,  must  be  stated,  and  proved  as  laid;  but,  if  it 

11  Stark.  Evid.  401 ;  Lansing  i>.  Mc-  signment  of  a  certain  policy,"  &c.,  and  the 

Killip,  3  Caines, 286;  Stones.  Kuowlton,  proof  was  tliat  "  tlie  policy  liaving  been 

3  Wend.  374.  assigned  to  us,  in  consideration  thereof, 

2  Smith  V.  Barker,  3  Day,  312.  we  promise,"  &c.,  it  was  held  that  there 

8  Robbins  v.  Otis,  1  Pick.  368.  was  a  A'ariance.    New  Hampshire  Mutual, 

*  Bulkley  v.  Landon,  2  Conn.  404.    [So  &c.,  Ins.  Co.  v.  Hunt,  10  Foster,  219.] 

if  t!  e  allegation  be  of  an  agreement  to  ^  Brooks  v.  Lowrie,  1  Nott  &  McCord, 

obtain  insurance  on  property, "  in  consid-  342. 

eralion  of  a  reasonable  commission,"  and  the  ^  Ferguson    v.    Harwood,   8    Cranch, 

proof  be  of  an  agreement  to  obtain  the  in-  408,  414. 

surance  in  consideration  of  a,  dcjinite  sum,  l  Bowditch  v.  IVIawIey,  2  Campb.  195; 

the  variance  is  fatal.     Cleaves  v.  Lord,  3  Dundas  v.  Ld.  Weymouth,  Cowp.  665 ; 

Gray,  66, 71.     And  where  the  declaration  supra,   §   55;    Ferguson   v.    Harwood,  7 

alleged  that  the  defendant, "  in  considera-  Cranch,  408,  413  ;  Sheehy  v.  Mandevilie. 

tion  that  said,  &c.,  had  accepted  the  as-  Id.  208,  217. 


88 


LAW   OF  EVIDENCE. 


[P.VJvT  n. 


merely  affects  the  amount  of  damages  to  be  recoYered,  or  the 
liability  of  the  defendant  as  affected  by  circumstances  occurring 
after  the  cause  of  action,  it  need  not  be  alleged  by  the  plaintiff, 
but  properly  comes  out  in  the  defence.^  And  where  the  deed  is 
not  described  according  to  its  tenor,  but  according  to  its  legal 
effect,  if  the  deed  agrees  in  legal  effect  with  the  allegation,  any 
verbal  discrepancy  is  not  a  variance.  As,  in  covenant  against  a 
tenant  for  not  repairing,  the  lease  being  stated  to  have  been  made 
by  the  plaintiff,  and  the  proof  being  of  a  lease  by  the  plaintiff  and 
his  wife,  she  having  but  a  chattel  interest ;  or,  if  debt  be  brought 
by  the  husband  alone,  on  a  bond  as  given  to  himself,  the  bond 
appearing  to  have  been  given  to  the  husband  and  wife ;  yet,  the 
evidence  is  sufficient  proof  of  the  allegation.^     But,  where  the 


1  1  Chitty,  PI.  268,  269  (5th  Am.  ed.) ; 
Howell  V.  Richards,  11  East,  033  ;  Clarke 
V.  Gray,  6  East,  564,  570. 

2  Beaver  v.  Lane,  2  Mod.  217  ;  Arnold 
V.  liivoult,  1  Br.  &  B.  442 ;  VVhitlock  v. 
Ramsey,  2  Munf.  510 ;  Ankerstein  v. 
Clark,  4  T.  R.  616.  It  is  said  that  an  al- 
legation that  J.  S.,  otherwise  R.  S.,  made 
a  deed,  is  not  supported  by  evidence,  that 
J.  S.  made  a  deed  by  the  name  of  R.  S. 
1  Stark.  Evid.  513,  citing  Hyckman  v. 
Shotbolt,  Dyer,  279,  pi.  9.  The  doctrine 
of  tiiat  case  is  very  clearly  expounded  by 
Parke,  B.,  in  Williams  v.  Bryant,  5  Mees. 
&  Wels.  447.  In  regard  to  a  discrepancy 
between  tlie  name  of  the  obligor  in  the 
body  of  a  deed,  and  in  the  signature,  a 
distinction  is  to  be  observed  between 
transactions  which  derive  their  efficacy 
wholly  from  the  deed,  and  those  wliicli  do 
not.  Thus,  in  a  feoffment  at  the  common 
law,  or  a  sale  of  personal  property  by 
deed,  or  the  like,  livery  being  made  in  the 
one  case,  and  possession  delivered  in  the 
other,  the  transfer  of  title  is  perfect,  not- 
withstanding any  mistake  in  the  name  of 
the  grantor ;  for  it  takes  effect  by  delivery, 
and  not  by  the  deed.  Perk.'§§  38-12. 
But  where  tlie  efficacy  of  the  transaction 
depends  on  the  instrument  itself,  as  in  the 
case  of  a  bond  for  tlie  ]Kiyment  of  money, 
or  any  other  executory  contract  by  deed, 
if  the  name  of  the  obligor  in  the  bond  is 
different  from  the  signature,  as  if  it  were 
written  John  and  signed  William,  it  is 
Baid  to  be  void  at  law  for  uncertainty, 
unless  hel[)ed  by  proper  averments  on  the 
record.  A  ini>take  in  this  matter,  as  in 
any  other,  in  drawing  up  the  contract, 
may  be  reformed  by  bill  in  equity.  At 
law,  wiiere  the  obligor  has  been  sued  by 
Lis  true  name,  signed  to  the  bond,  and 


not  by  that  written  in  the  body  of  it,  and 
the  naked  fact  of  the  discrepancy,  unex- 
plained, is  all  which  is  presented  by  the 
record,  it  has  always  been  held  bad.  This 
rule  was  originally  founded  in  this,  that  a 
man  cannot  have  two  names  of  baptism 
at  the  same  time  ;  for  whatever  name  was 
imposed  at  his  baptism,  whether  single  or 
compounded  of  several  names,  he  being 
baptized  but  once,  that  and  that  alone  was 
his  baptismal  name  ;  and  by  that  name  he 
declared  himself  bound.  So  it  was  held 
in  Serchor  v.  Talbot,  3  Hen.  VI.  25,  pi.  6, 
and  subsequently  in  Thornton  v.  Wikes, 
34  Hen.  VI.  19,  pi.  36;  Field  v.  Winslow, 
Cro.  El.  897  ;  Oliver  v.  Watkins,  Cro.  Jac. 
558;  Maby  v.  Shepherd,  Cro.  Jac.  640; 
Evans  v.  King,  Willes,  554 ;  Clerke  r. 
Isted,  Lutw.  275;  Gould  v.  Barnes,  3 
Taunt.  504.  "  It  appears  from  these  cases 
to  be  a  settled  point,"  said  Parke,  B.,  in 
Williams  v.  Bryant,  "  tiiat  if  a  declara- 
tion against  a  defendant  by  one  Christian 
name,  as,  for  instance,  Joseph,  state  that 
he  executed  a  bond  by  the  name  of 
Thomas,  aHci  there  be  no  averment  to  er/>lain 
the  difference,  such  as  that  he  ivas  known  hij 
the  latter  name  at  the  time  of  the  execution, 
such  a  declaration  would  be  bad  on  de- 
murrer, or  in  arrest  of  judgment,  even 
after  issue  joined  on  a  plea  of  non  est  fac- 
tum. And  the  reason  appears  to  be,  tliat 
in  bonds  and  deeds,  tlie  efficacy  of  which 
depends  on  the  instrument  itself,  and  not 
on  matter  in  jHiis,  there  must  be  a  certain 
desiijnai io persona  of  the  party,  which  regu- 
larly ougiit  to  be  by  tiie  true  first  name  or 
name  of  baptism,  and  surname  ;  of  which 
the  first  is  the  most  important."  "  But, 
on  the  other  hand,"  he  ailds,  "  it  is  cer- 
tain, tliat  a  person  may  at  this  time  sue  or 
be  sued,  not  merely  by  his  true  name  of 


CHAP,  n.] 


THE   SUBSTA2sCE   OF   THE   ISSUE. 


89 


deed  is  set  out,  on  oyer,  the  rule  is  otherwise  ;  for  to  have  oyer  is, 
in  modern  practice,  to  be  fiu-nished  with  an  exact  and  literal  copy 
of  the  deed  declared  on,  every  word  and  part  of  which  is  thereby 
made  descriptive  of  the  deed  to  be  offered  in  evidence.  In  such 
case,  if  the  plaintiff  does  not  produce  in  evidence  a  deed  literally 
corresponding  with  the  copy,  the  defendant  may  well  say  it  is  not 
the  deed  in  issue,  and  it  w^ill  be  rejected.^ 

§  70.  Records.     Where  a  record  is  mentioned  in  the  pleadings. 


baptism,  but  by  any  first  name  which  he 
has  acquired   by  usage  or  reputation." 
"  If  a  party  is  called  and  known  by  any 
proper  name,  by  that  name  he  may  be 
sued,  and   the   misnomer  coukl   not   be 
pleaded  in  abatement ;  and  not  only  is 
this  the  established  practice,  but  the  doc- 
trine   is    promulgated   in   very   ancient 
times.      In   Bracton,    188   6,    it   is   said, 
"  Item,    si    quis    binominis   fuerit,  sive  in 
nomine  jnoprio  sive  in  cofjiwmine,   illud 
nomen  tenendum  erit,  quo  solet  frequen- 
tius  appellari,  quia  adeo  imposita  sunt,  ut 
demonstrent  voluntatem  dicentis,  et  uti- 
niur  notis  in  vocis  ministerio."     And  if  a 
party  may  sue  or  be  sued  by  the  proper 
name  by  which  he  is  known,  it  must  be  a 
sufficient  designation  of  him,  if  he  enter 
into  a  bond  by  that  name.    It  by  no  means 
follows,  therefore,  that  the  decision  in 
the  case  of  Gould  v.  Barnes,  and  others 
before  referred  to,  in  which  the  question 
arose  on  the  record,  would  have  been  the 
same,  if  there  had  been  an  averment  on  the 
face  of  the  declaration  that  the  party  ivas 
known  by  the  proper  name  in  ichich  the  bond 
was  made  at  the  time  of  making  it.     We 
find  no  authorities  for  saying,  that  the 
declaration  would  have  been  bad  with 
such  an  averment,  even  if  there  had  been  a 
total  variance  of  the  first  names  ;  still  less, 
where  a  man,  having  two  proper  names, 
or  names  of  baptism,  has  bound  himself 
by  the  name  of  one.     And  on  the  plea  of 
"  non  est  factum,"  where  the  difference  of 
name  does  not  appear  on  the  record,  and 
there  is  evidence  of  the  party  having 
been  known,  at  the  time  of  the  execution, 
by  the  name  on  the  instrument,  there  is 
no  case,  that  we  are   aware   of,  which 
decides   that   the    instrument   is   void." 
The  name  written  in  the  body  of  the 
instrument  is  that  which  the  party,  by 
the  act  of  execution  and   delivery,  de- 
clai'es  to  be  his  own,  and  by  which  he 
acknowledges  himself  bound.     By  this 
name,  therefore,  he  should  regularly  be 
sued ;  and  if  sued  with  an  alias  dictus  of 
his  true  name,  by  which  the  instrument 
was   signed,   and    an    averment   in  the 
declaration  that  at  the  time  of  executing 


the  instrument  he  was  known  as  well  by 
the  one  name  as  the  other,  it  is  con- 
ceived that  he  can  take  no  advantage  of 
the  discrepancy ;  being  estopped  by  the 
deed  to  deny  this  allegation.  Evans  v. 
King,  Willes,  555,  n.  (b)  ;  Reeves  v. 
Slater,  7  Barn.  &  Cress.  486,  490;  Cro. 
El.  897,  n.  (a).  See  also  Regina  v.  Wool- 
dale,  6  Ad.  &  El.  549,  n.  s.  ;  Wooster  v.' 
Lyons,  5  Blackf.  60.  If  sued  by  the  name 
written  in  the  body  of  the  deed,  without 
any  explanatory  averment,  and  he  pleads 
a  misnomer  in  abatement,  the  plaintiff,  in 
his  replication,  may  estop  him  by  the 
deed.  Dyer,  279  b,  pi.  9,  n. ;  Story's 
Pleadings,  43 ;  Willes,  555,  n.  And  if 
he  should  be  sued  by  his  true  name,  and 
plead  ?ion  est  factum,  wherever  this  plea, 
as  is  now  the"  case  in  England,  since  the 
rule  of  Hilary  Term,  4  Wm.  IV.  R.  21, 
"  operates  as  a  denial  of  the  deed  in  point 
of  fact  only,"  all  other  defences  against  it 
being  required  to  be  specially  pleaded,  the 
difficulty  occasioned  by  the  old  decisions 
may  now  be  avoided  by  proof  that  the 
party,  at  the  time  of  the  execution,  was 
knovvn  by  the  name  on  the  face  of  the 
deed.  In  those  American  States  which 
have  abolished  special  pleading,  substi- 
tuting the  general  issue  in  all  cases,  with 
a  brief  statement  of  the  special  matter 
of  defence,  probably  the  new  course  of 
practice  thus  introduced  would  lead  to  a 
similar  result. 

1  Waugh  V.  Bussel,  5  Taunt.  707,  709, 
per  Gibbs,  C.  J. ;  James  v.  WalrutU,  8 
Johns.  410;  Henry  v.  Cleland,  14  Johns. 
400;  Jansen  v.  Ostrander,  1  Cowen,  670, 
ace.  In  Henry  i'.  Brown,  14  Johns.  49, 
where  the  condition  of  the  bond  was 
"  without  fraud  or  other  delay,"  and  in  the 
oyer  the  word  "  other  "  was  omitted,  the 
defendant  moved  to  set  aside  a  verdict  for 
the  plaintiff,  because  the  bond  was  ad- 
mitted in  evidence  without  regard  to  the 
variance  ;  but  the  court  refused  the  mo- 
tion, partly  on  the  ground  that  the  vari- 
ance was  immaterial,  and  partly  that  the 
oyer  was  clearly  amendable.  See  also 
Dorr  V.  Fenno,  12  Pick.  521. 


90  LAW   OF  EVIDENCE.  [PAKT  H. 

the  same  distinction  is  now  aclmittecl  in  the  proof,  between 
allegations  of  matter  of  substance,  and  allegations  of  matter  of 
description ;  the  former  require  only  substantial  proof,  the  latter 
must  be  literally  proved.  Thus,  in  an  action  for  malicious  prose- 
cution, the  day  of  the  plaintiff 's  acquittal  is  not  material.  Neither 
is  the  term  in  which  the  judgment  is  recovered  a  material  allega- 
tion in  an  action  against  the  sheriff  for  a  false  return  on  the  writ 
of  execution.  For  in  both  cases,  the  record  is  alleged  by  way  of 
inducement  only,  and  not  as  the  foundation  of  the  action ;  and 
therefore  literal  j^roof  is  not  required.^  So,  in  an  indictment  for 
perjury  in  a  case  in  chancery,  where  the  allegation  was,  that  the 
bill  was  addressed  to  Robert,  Lord  Henly,  and  the  proof  was  of  a 
bill  addressed  to  Sir  Robert  Henly,  Kt.,  it  was  held  no  variance ; 
the  substance  being,  that  it  was  addressed  to  the  person  holding 
the  great  seal.^  But  where  the  record  is  the  foundation  of  the 
action,  the  term  in  which  the  judgment  was  rendered,  and  the 
number  and  names  of  the  parties,  are  descriptive,  and  must  be 
strictly  proved.^ 

§  71.  Prescriptions.  In  regard  to  prescriptions^  it  has  been 
already  remarked  that  the  same  rules  apply  to  them  which  are 
applied  to  contracts ;  a  prescription  being  founded  on  a  grant 
supposed  to  be  lost  by  lapse  of  time.^  If,  therefore,  a  prescrip- 
tive right  be  set  forth  as  the  foundation  of  the  action,  or  be 
pleaded  in  bar  and  put  in  issue,  it  must  be  proved  to  the  full 
extent  to  which  it  is  claimed ;  for  every  fact  alleged  is  descrip- 
tive of  the  supposed  grant.  Thus,  if  in  trespass,  for  brealdng 
and  entering  a  several  fishery,  the  plaintiff,  in  his  replication, 
prescribes  for  a  sole  and  exclusive  right  of  fishing  in  four  places, 
upon  which  issue  is  taken,  and  the  proof  be  of  such  right  in  only 
three  of  the  places,  it  is  a  fatal  variance.  Or,  if  in  trespass  the 
defendant  justify  under  a  prescriptive  right  of  common  on  five 
hundi'ed  acres,  and  the  proof  be  that  his  ancestor  had  released 

•  Purcell  V.  Macnamara,  9  East,  157  ;  of  error  brought  to  reverse  the  juclpmcnt 

Stoddart  v.  Palmer,  4  H.  &  B.  2  ;  Pliillips  of  wait-fir,  the  judgment  was  called  a  jiidg- 

V,  Shaw,  4  B.  &  A.  4:55  ;  5  B.  &  A.  9()4.  merit  of  outlawry,  the  variance  upon  a  plea 

2  Per  Duller,  J.,  in  Rex  i;.  Pippett,  1  oi  niil  tl4  record  was  held  fatal.  Burnett 
T.  R.  240  ;  Rodman  i;.  Forman,  8  Johns,  v.  Phillips,  6  Eng.  Law  &  Eq.  4G7.  And 
29 ;  Brooks  »•.  Bemiss,  Id.  455  ;  The  State  though  the  variance  be  in  regard  to  facts 
V.  Caffcy,  2  Murphy,  820.  and  circumstances  which   need  not  liave 

3  Rastall  V.  Stratton,  1  II.  Bl.  49  ;  been  stated,  it  is  still  fatal.  Whitaker  v. 
Woodford  V.  Ashley,  11  East,  508  ;  Black  Bramson,  2  Paine,  C.  C.  209.] 

V.   Braybrook,   2    Stark.    7  ;    Baynes    v.  *  Supra,  §  68  [post,  voL  ii.  §§  537-646, 

Forrest,  2  Str.  892  ;  United  States  v.  Me-     tit.  Pbesckiption]. 
Neal,  1  Gall.  387.     [And  where,  iu  a  writ 


CHAP,  n.]  THE  SUBSTAl^CE   OF   THE  ISSUE.  91 

five  of  them,  it  is  fatal.  Or  if,  in  replevin  of  cattle,  the  defend- 
ant avow  the  taking  damage  feasant,  and  the  plaintiff  plead  in 
bar  a  prescriptive  right  of  common  for  all  the  cattle,  on  which 
issue  is  taken,  and  the  proof  be  of  such  right  for  only  a  part  of 
the  cattle,  it  is  fatal.^ 

§  72.  Prescriptions.  But  a  distinctio7i  is  to  be  observed  between 
cases,  where  the  prescription  is  the  foundation  of  the  claim,  and 
is  put  in  issue,  and  cases  where  the  action  is  founded  in  tort,  for 
a  disturbance  of  the  plaintiff  in  his  enjoyment  of  a  prescriptive 
right.  For  in  the  latter  cases  it  is  sufficient  for  the  plaintiff  to 
prove  a  right  of  the  same  nature  with  that  alleged,  though  not  to 
the  same  extent ;  the  gist  of  the  action  being  the  wrongful  act 
of  the  defendant,  in  disturbing  the  plaintiff  in  his  right,  and  not 
the  extent  of  that  right.  Therefore,  where  the  action  was  for  the 
disturbance  of  the  plaintiff  in  his  right  of  common,  by  opening 
stone  quarries  there,  the  allegation  being  of  common,  by  reason 
both  of  a  messuage  and  of  land,  whereof  the  plaintiff  was  pos- 
sessed, and  the  proof,  in  a  trial  upon  a  general  issue,  being  of 
common  by  reason  of  the  land  only,  it  was  held  no  variance  ;  the 
court  observing,  that  the  proof  was  not  of  a  different  allegation, 
but  of  the  same  allegation  in  part,  which  was  sufficient,  and  that 
the  damages  might  be  given  accordingly .^  Yet  in  the  former 
class  of  cases,  where  the  prescription  is  expressly  in  issue,  proof 
of  a  more  ample  right  than  is  claimed  will  not  be  a  variance ;  as, 
if  the  allegation  be  of  a  right  of  common  for  sheep,  and  the  proof 
be  of  such  right,  and  also  of  common  for  cows.^ 

§  73.  Amendments  to  remedy  variance.  But  the  party  may  now, 
in  almost  every  case,  avoid  the  consequences  of  a  variance  between 
the  allegation  in  the  pleadings  and  the  state  of  facts  proved,  hy 
amendment  of  the  record.  This  power  was  given  to  the  courts 
in  England  by  Lord  Tenterden's  Act,"*  in  regard  to  variances 
between  matters  in  writing  or  in  print,  produced  in  evidence,  and 
the  recital  thereof  upon  the  record ;  and  it  was  afterwards  ex- 
tended^ to  all  other  matters,  in  the  judgment  of  the  court  or 
judge  not  material  to  the  merits  of  the  case,  upon  such  terms  as 

1  Rogers  v.  Allen,  1  Campb.  313,  315  ;  8  Bushwood  v.  Pond,  Cro.  El.  722 ; 
Rotherham  v.  Green,  Nov,  67 ;  Convers  Tewksbury  v.  BrickneU,  1  Taunt.  142 ; 
V.  Jackson,  Clayt.  19 ;  Bull.  N.  P.  299.  supra,  §§  58,  67,  68. 

2  Rickets  V.  Salway,  2  B.  &  A.  860 ;  «  9  Geo.  IV.  c.  15. 

Yarley  v.  Turnoek,  Cro.  Jac.  629 ;  Mani-  5  By  Stat.  3  &  4  Wm.  IV.  c.  42,  §  23. 

fold  V.  Pennington,  4  B.  &  C.  161. 


92 


LAW  OF  EVIDENCE. 


[part  n. 


to  costs  and  postponement  as  the  court  or  judge  may  deem  rea- 
sonable. The  same  power,  so  essential  to  the  administration  of 
substantial  justice,  has  been  given  by  statutes  to  the  courts  of 
most  of  the  several  States,  as  well  as  of  the  United  States ;  and 
in  both  England  and  America  these  statutes  have,  with  great  pro- 
priety, been  liberally  expounded,  in  furtherance  of  their  beneficial 
design.^  The  judge's  discretion,  in  allowing  or  refusing  amend- 
ments, like  the  exercise  of  judicial  discretion  in  other  cases,  can- 
not, in  general,  be  reviewed  by  any  other  tribunal.^  It  is  only  in 
the  cases  and  in  the  manner  mentioned  in  the  statutes,  that  the 
propriety  of  its  exercise  can  be  called  in  question. 


1  See  Hanbury  v.  Ella,  1  Ad.  &  El.  61 ; 
Parry  i-.  Fairhurst,  2  Cr.  M.  &  R.  190, 
196 ;  Doe  v.  Edwards,  1  M.  &  Rob.  319  ; 
s.  C.6C.&  P.  208;  Hemming  v.  Parry, 
6  C.  &P.  580;  Mash  v.  Densliam,  1  M.  & 
Rob.  442;  Ivey  v.  Young,  Id.  515  ;  How- 
ell V.  Tliomas,  7  C.  &  P.  342  ;  Mayor,  &c., 
of  Carmarthen  v.  Lewis,  6  C.  &  P.  608 ; 
Hill  V.  Salt,  2  C.  &  M.  420 ;  Cox  v.  Painter, 
1  Nev.  &  P.  581 ;  Doe  v.  Long,  9  C.  &  P. 
777  ;  Ernest  v.  Brown,  2  M.  &  Rob.  13; 
Story  V.  Watson,  2  Scott,  842 ;  Smith  v. 
Brandram,  9  Dowl.  430;  Whitwell  v. 
Scheer,  8  Ad.  &  El.  301 ;  Read  v.  Duns- 
more,  9  C  &  P.  588 ;  Smith  v.  Knowel- 
den,  8  Dowl.  40  ;  Norcott  v.  Mottram,  7 
Scott,  176  ;  Legge  v.  Boyd,  5  Bing.  N.  C. 
240.  Amendments  were  refused  in  Doe 
V.  Errington,  1  Ad.  &  El.  750;  Cooper 
V.  Whiteliouse,  1  C.  &  P.  545 ;  John  v. 
Currie,  Id.  618 ;  Watkins  v.  Morgan,  Id. 
661;  Adams  v.  Power,  7  C.  &  P.  76; 
Brashier  v.  Jackson,  G  M.  &  W.  549  ;  Doe 
V.  Rowe,  8  Dowl.  444  ;  Empson  v.  Griffin, 
3  P.  &  I).  168.  The  following  are  cases 
of  variance,  arising  under  Lord  Tenter- 
den's  Act.  Bentzing  v.  Scott,  4  C.  &  P. 
24;  Moilliet  v.  Powell,  6  C.  &  P.  223; 
Lamey  v.  Bishop,  4  B.  &  Ad.  479 ;  Briant 


V.  Eicke,  Mood.  &  Malk.  359 ;  Parks  v. 
VAge,  1 C.  &  M.  429 ;  Masterman  v.  Judson, 
8  Bing.  224  ;  Brooks  v.  Blanchard,  1  C.  & 
M.  779  ;  Jelf  v.  Oriel,  4  C.  &  P.  22.  The 
American  cases,  which  are  very  numer- 
ous, are  stated  in  1  Metcalf  &  Perkins's 
Digests,  p.  145-162,  and  in  Putnam's 
Supplement,  vol.  ii.  p.  727-730.  [See 
also  post,  vol.  ii.  §  11  a-11  e.] 

2  Doe  V.  Errington,  1  M.  &  Rob.  344, 
n. ;  Mellish  v.  Richardson,  9  Bing.  125 ; 
Parks  V.  Edge,  1  C.  &  M.  429 ;  Jenkins  v. 
Phillips,  9  C.  &  P.  766 ;  Merriam  v.  Lang- 
don,  10  Conn.  460,  473;  Chipp  v.  Balch, 
3  Greenl.  216,  219  ;  Mandeville  v.  Wilson, 
6  Cranch,  15 ;  Marine  Ins.  Co.  v.  Hodg- 
son, 6  Cranch,  206;  Walden  v.  Craig,  9 
Wheat.  576;  Chirac  r.  Reinicker,  11 
Wheat.  302;  United  States  v.  Buford,  3 
Peters,  12,  32 ;  Benner  v.  Frey,  1  Binn. 
366;  Bailey  v.  Musgrave,  2  S.  &  R.  219; 
Bright  V.  Sugg,  4  Dever.  492.  But  if  the 
judge  exercises  his  discretion  in  a  manner 
clearly  and  manifestly  wrong,  it  is  said 
that  the  court  will  interfere  and  set  it 
right.  Hackman  v.  Fernie,  1  M.  &  W. 
505 ;  Geach  v.  Ingall,  9  Jur.  691 ;  14  M. 
&  VV.  95. 


CHAP,  m.] 


THE  BUKDKN   OF  PROOF. 


93 


CHAPTER  III. 


OP   THE   BURDEN   OF   PROOF. 


§  74.  Upon  which  party  it  lies.  A  third  rule  which  governs 
in  the  production  of  evidence  is,  that  the  obligation  of  proving 
any  fact  lies  upon  the  party  who  suhstantially  asserts  the  affirmative 
of  the  issue.  This  is  a  rule  of  convenience,  adopted  not  because 
it  is  impossible  to  prove  a  negative,  but  because  the  negative 
does  not  admit  of  the  direct  and  simple  proof  of  which  the  affirma- 
tive is  capable.^  It  is,  therefore,  generally  deemed  sufficient, 
where  the  allegation  is  affirmative,  to  oppose  it  with  a  bare  denial, 
until  it  is  established  by  evidence.  Such  is  the  rule  of  the  Roman 
law.  "  Ei  incumbit  probatio  qui  dicit,  non  qui  negat."  ^    As  a  con- 


1  Dranguet  v.  Prudhomme,  3  La.  83, 
86 ;  Costigan  v.  Mohawk  &  Hudson 
R.  Co.,  2  Denio,  609  [Commonwealth  v. 
Tuey,  8  Cash.  1 ;  Burnham  v.  Allen,  1 
Gray,  496, 499 ;  Crowninshield  v.  Crownin- 
shield,  2  Gray,  524,  529.  The  burden  of 
proof  and  the  weight  of  evidence  are  two 
very  difEerent  things.  The  former  re- 
mains on  the  party  affirming  a  fact  in 
support  of  his  case,  and  does  not  change 
in  any  aspect  of  tlie  cause ;  the  latter 
shifts  from  side  to  side  in  the  progress 
of  a  trial  according  to  the  nature  and 
strength  of  the  proofs  offered  in  support 
or  denial  of  the  main  fact  to  be  estab- 
lished. Central  Bridge  Corporation  v. 
Butler,  2  Gray,  132 ;  Blanchard  v.  Young, 
11  Cush.  346  ;  Spaulding  v.  Hood,  8  Cush. 
606,  606.  Where  the  proof  on  both  sides 
applies  to  one  and  the  same  proposition 
of  fact,  the  party  whose  case  requires  the 
proof  of  that  fact  has  all  along  the  burden 
of  proof,  though  the  weight  in  either  scale 
may  at  times  preponderate.  Powers  v. 
Russell,  13 Pick.  (Mass.)  76.  Ordinarily, 
a  witness  who  testilies  to  an  affirmation 
is  entitled  to  credit  in  preference  to  one 
who  testifies  to  a  negative,  because  the 
latter  may  have  forgotten  what  actually 
occurred,  while  it  is  impossible  to  re- 
member what  never  existed.  Stitt  v, 
Huidekoper,  17  Wall.  (U.  S.)  384J. 

2  Dig.  lib.  22,  tit.  3,  1.  2 ;  Mascard.  de 
Prob.  Concl.  70,  tot.;  Concl.  1128,  n.  10. 
See  also  Tait  on  Evid.  p.  1.  [In  general, 
where  the  plaintiff  makes  out  a  prima 


facie  case,  although  the  burden  always 
remains  on  him  to  support  his  case,  yet 
this  prima  facie  case  supports  it,  and 
becomes  conclusive  unless  met  and  con- 
trolled by  the  defendant ;  and,  while  the 
burden  of  proof  does  not  strictly  shift, 
but  still  remains  with  the  plaintiff  upon 
the  facts  he  alleges,  yet  he  may  stand 
upon  his  prima  facie  case,  and  the  de- 
fendant must  take  up  the  onus  of  con- 
trolling it,  and  this  burden  is  upon  him. 
Burnham  v.  Allen,  1  Gray  (Mass.),  600; 
Eaton  V.  Alger,  47  N.  Y.  61  ;  Caldwell 
V.  N.  J.  St.  Nav.  Co.,  lb.  290.  Strictly 
speaking,  there  is  no  shifting  of  burdens 
from  one  party  to  tlie  other  in  the  prog- 
ress of  a  trial  upon  any  specific  allega- 
tion essential  to  his  case.  But  where  tiie 
plaintiff  has  carried  his  burden  to  that 
point  at  which  he  will  be  entitled  to  a 
verdict,  if  nothing  is  done  by  the  defend- 
ant, then  the  defendant  takes  up  his 
burden,  and  meets  and  counteracts  the 
plaintiff's  case,  if  he  can.  But  eacli 
carries  his  own  burden  throughout  the 
trial,  and  that  is  to  prove  the  facts  he 
alleges.  Crowninshield  v.  Crowninshield, 
2  Gray  (Mass.),  524.  "  The  burden  upon 
the  plaintiff  is  coextensive  only  "vith  the 
legal  propositions  upon  which  his  case 
rests.  It  applies  to  every  fact  which  is 
essential  or  necessarily  involved  in  that 
proposition.  It  does  not  apply  to  facts 
relied  on  in  defence  to  establish  an  inde- 
pendent proposition,  however  inconsist- 
ent it  may  be  with  that  upon  which  the 


94  LAW   OF  EVIDENCE.  [PAET  H. 

sequence  of  this  rule,  the  party  who  asserts  the  affirmative  of  the 
issue  is  entitled  to  begin  and  to  reply ;  and  having  begun,  he  is 
not  permitted  to  go  into  half  of  his  case,  and  reserve  the  remain- 
der ;  but  is  generally  obliged  to  develop  the  whole. ^  Regard  is 
had,  in  this  matter,  to  the  substance  and  effect  of  the  issue,  rather 
than  to  the  form  of  it ;  for  in  many  cases  the  party,  by  making  a 
slight  change  in  his  pleading,  may  give  the  issue  a  negative  or  an 
affirmative  form,  at  his  pleasure.  Therefore  in  an  action  of  cove- 
nant for  not  repairing,  where  the  breach  assigned  was  that  the 
defendant  did  not  repair,  but  suffered  the  premises  to  be  ruinous, 
and  the  defendant  pleaded  that  he  did  repair,  and  did  not  suffer 
the  premises  to  be  ruinous,  it  was  held  that  on  this  issue  the 
plaintiff  should  begin.^  If  the  record  contains  several  issues, 
and  the  plaintiff  hold  the  affirmative  in  any  one  of  them,  he  is 
entitled  to  begin ;  as,  if  in  an  action  of  slander  for  charging  the 
plaintiff  with  a  crime,  the  defendant  should  plead  not  guilty,  and 
a  justification.  For  wherever  the  plaintiff  is  obliged  to  produce 
any  proof  in  order  to  establish  his  right  to  recover,  he  is  generally 
required  to  go  into  his  whole  case,  according  to  the  rule  above 
stated,  and  therefore  is  entitled  to  reply.  How  far  he  shall  pro- 
ceed in  his  proof,  in  anticipation  of  the  defence  on  that  or  the 
other  issues,  is  regulated  by  the  discretion  of  the  judge,  accord- 
ing to  the  circumstances  of  the  case  ;  regard  being  generally  had 
to  the  question,  whether  the  whole  defence  is  indicated  by  the 
plea,  with  sufficient  particularity  to  render  the  plaintiff's  evi- 
dence intelligible.^ 

plaintiff's  case  depends.    It  is   for  the  on  either  side ;  for  the  burden  of  proof 

defendant  to  furnish  proof  of  such  facts;  lies  on  the  party  against  whom,  in  such 

and  when  lie  has  done  so,  the  burden  is  case,   the    verdict    ou,u;ht    to   be   given, 

upon  tlie  plaintiff,  not  to  disprove  these  Leete  v.  Greshain  Life  Ins.  Co.,  7  Eng. 

particular    facts,    nor     tlie    proposition  Law    &   Eq.    578;  15   Jur.   11(11.      And 

winch    they   tend    to   establish,   but   to  see  Hackman  v.  Fernie,  3  M.  &  W.  510. 

maintain    tlie    proposition    upon   which  [Mr.  Taylor  suggests   two  other   tests. 

his  own  case  rests,  notwitlistanding  such  First,  to  consider  wliich  party  would  suc- 

(.ontrolling  testimony  and  upon  the  whole  cced  if  no  evidence  were  given  on  eitlier 

evidence  in  the  case.     Wilder  v.  Cowles,  side  ;  and,  second,  to  examine  what  would 

lUO  Mass.  487.     And  see  post,  §§  80  n.,  be  the  effect  of  striking  out  of  the  roc- 

81  a,  HI /;,  81  c-l  ord   the  allegations  to  be  proved,  that 

1  Kevs  V.  Smith,  2  Stark.  .31 ;  3  Clritty, "  the  burden  of  proof  rests  u])on  tlie  party 

Gen.   Pract    872-877 ;    Swift's    Law    of  whose  case  would  be  thereby  destroyed. 

Evid.  p.  152;  Bull.  N.  P.  2!)8;  Browne  i>.  1    Taylor   Ev.    §   338;    citing   Amos    v. 

Murray,  H-  &  Mood.  254;  .Jones  v.  Ken-  Hughes,  1  M.  &  Kob.  464,  per  Alderson. 

nedy,  11  Pick.  125,  132.     Tlie  true  test  B. ;  Doe  v.  Rowlands,  9  C.  &  P.  73-5,  and 

to  determine  which  party  has  the  right  Osborn  v.  Thom])son,  2  M.  &  R.  256  as  to 

to   begin,   and   of   course    to   determine  the  first,  and  Mills  i'.  Barber,  1  M.  &  W. 

where  is  the  burden  of  proof,  is  to  con-  427,  as  to  the  second.] 

sider  which  party  would  be  entitled  to  ^  Soward  v.  Leggatt,  7  C.  &  P.  613. 

the  verdict,  if  no  evidence  were  offered  »  Recs  v.  Smith,  2  Stark.  31;  Jack* 


CHAP,  in.]  THE  BURDEN   OF  PROOF.  95 

§  75.  Damages.  Whether  the  necessity  of  proving  damages,  on 
the  part  of  the  phiintiff,  is  such  an  affirmative  as  entitles  him  to  begni 
and  reply,  is  not  perfectly  clear  by  the  authorities.  Where  such 
evidence  forms  part  of  the  proof  necessary  to  sustain  the  action, 
it  may  AveU  be  supposed  to  fall  within  the  general  rule  ;  as,  in  an 
action  of  slander,  for  words  actionable  only  in  respect  of  the 
special  damage  thereby  occasioned ;  or,  in  an  action  on  the  case, 
by  a  master  for  the  beating  of  his  servant  per  quod  servltium 
amisit.  It  would  seem,  however,  that  where  it  appears  by  the 
record,  or  by  the  admission  of  counsel,  that  the  damages  to  be 
recovered  are  only  nominal,  or  are  mere  matter  of  computation, 
and  there  is  no  dispute  about  them,  the  formal  proof  of  them  will 
not  take  away  the  defendant's  right  to  begin  and  reply,  whatever 
be  the  form  of  the  pleadings,  provided  the  residue  of  the  case  is 
affirmatively  justified  by  the  defendant.^  And  if  the  general 
issue  alone  is  pleaded,  and  the  defendant  will,  at  the  trial,  admit 
the  whole  of  the  plaintiff's  case,  he  may  still  have  the  advantage 
of  the  beginning  and  reply .^  So  also  in  trespass  quare  clausum 
f regit,  where  the  defendant  pleads  not  guilty  as  to  the  force  and 
arms  and  whatever  is  against  the  peace,  and  justifies  as  to  the 
residue,  and  the  damages  are  laid  only  in  the  usual  formula  of 
treading  down  the  grass,  and  subverting  the  soil,  the  defendant 
is  permitted  to  begin  and  reply ;  there  being  no  necessity  for  any 
proof  on  the  part  of  the  plaintiff.^ 

son  V.  Hesketh'Id.  518;  James  v.  Salter,  porter's  note  on  that  case,  in  1  Mood.  & 

1  M.  &  Rob.  501 ;  Rawlins  v.  Desborough,  M.  278-281.     The  diciiim  of  the  learned 

2  M.  &  Rob.  328 ;  Comstock  v.  Hadlynie,  judge,  in  Brooks  v.  Barrett,  7  Pick.  100, 
8  Conn.  261 ;  Curtis  v.  Wheeler,  4  C.  &  is  not  supposed  to  militate  with  this 
P.  196 ;  s.  c.  1  M.  &  M.  493  ;  Williams  v.  rule  ;  but  is  conceived  to  apply  to  cases 
Thomas,  4  C.  &  P.  234 ;  7  Pick.  100,  per  where  proof  of  the  note  is  required  of 
Parker,  C.  J.  In  Browne  v.  Murray,  Ry.  the  plaintiff.  Sanford  v.  Hunt,  1  C.  &  P. 
&  Mood.  2.54,  Lord  C.J.  Abbott  gave  the  118;  Goodtitle  v.  Braham,  4  T.  R.  497. 
plaintiff  his  election,  after  proving  the  [For  a  qualification  of  Brooks  f.  Barrett, 
general  issue,  either  to  proceed  immedi-  see  Crowninshield  v.  Crowninshield,  2 
ately  with  all  his  proof  to  rebut  the  an-  Gray,  528.] 

ticipated  defence,  or  to  reserve  such  -  Tucker  v.  Tucker,  1  Mood.  &  M. 
proof  till  the  defendant  had  closed  his  536;  Fowler  v.  Coster,  Id.  241;  Doe  v. 
own  evidence;  only  refusing  him  the  Barnes,!  M.  &Rob.  386;  Doe  v.  Smart, 
privilege  of  dividing  his  case  into  halves,  Id.  476 ;  Fish  v.  Travers,  3  C.  &  P.  578; 
giving  part  in  the  first  instance,  and  the  Comstock  v.  Hadlyme,  8  Conn.  261 ; 
residue  after  the  defendant's  case  was  Lacon  i'.  Higgins,  3  Stark.  178;  Corbett 
proved.  [York  v.  Pease,  2  Gray,  282 ;  v.  Corbett,  3  Campb.  368 ;  Foman  v. 
Holbrook  v.  McBride,  4  Id.  218 ;  Cush-  Thompson,  6  C.  &  P.  717 ;  Smart  v.  Ray- 
ing V.  Billings,  2  Cush.  158.  Evidence  ner,  Id.  721 ;  Mills  v.  Oddy,  Id.  728  ;  Scott 
in  rebuttal  is  not  inadmissible,  because  v.  Hull,  8  Conn.  296.  But  see  hfra,  §  76, 
it   corroborates   the   evidence    in    chief,  n.  4. 

Wright  V.  Foster,  109  Mass.  57.]  »  Hodges  v.  Holden,  3  Campb.  366 ; 

1  Fowler  v.  Coster,  1  Mood.  &  M.  243,  Jackson  v.  Hesketh,  2  Stark.  618 ;  Pear- 

per  Lord  Teuterden.    And   see  the  re-  son  v.  Coles,  1  Mood.  &  Rob.  200 ;  Davis 


96 


LAW   OF  EVIDENCE. 


[part  n. 


§  76.  Unliquidated  damages.  The  difficulty  in  determining  this 
point  exists  chiefly  in  those  cases,  where  the  action  is  for  unliqui- 
dated damages^  and  the  defendant  has  met  the  whole  case  with 
an  affirmative  plea.  In  these  actions  the  practice  has  been 
various  in  England ;  but  it  has  at  length  been  settled  by  a  rule, 
by  the  fifteen  judges,  that  the  plaintiff  shall  begin  in  all  actions 
for  personal  injuries,  libel,  and  slander,  though  the  general  issue 
may  not  be  pleaded,  and  the  affirmative  be  on  the  defendant.^ 
In  actions  upon  contract,  it  was,  until  recently,  an  open  question 
of  practice  ;  having  been  sometimes  treated  as  a  matter  of  right 
in  the  part}^  and  at  other  times  regarded  as  resting  in  the  discre- 
tion of  the  judge,  under  all  the  circumstances  of  the  case.^  But 
it  is  now  settled,  in  accordance  with  the  rule  adopted  in  other 
actions.^  In  this  country  it  is  generally  deemed  a  matter  of  dis- 
cretion, to  be  ordered  by  ihe  judge  at  the  trial,  as  he  may  think 
most  conducive  to  the  administration  of  justice ;  but  the  weight 
of  authority,  as  well  as  the  analogies  of  the  law,  seem  to  be  in 
favor  of  giving  the  opening  and  closing  of  the  cause  to  the  plain- 
tiff, wherever  the  damages  are  in  dispute,  unliquidated,  and  to  be 
settled  by  the  jury  upon  such  evidence  as  may  be  adduced,  and 
not  by  computation  alone.* 


V.  Mason,  4  Pick.  156 ;  Leech  v.  Ar- 
mitage,  2  Dall.  125.  [Where  a  defend- 
ant under  a  rule  of  court  filed  an  admis- 
sion of  the  plaintiff's  prima  facie  case,  in 
order  to  obtain  the  right  to  open  and 
close,  he  was  held  not  to  be  thereby 
estopped  from  setting  up  in  defence  the 
statute  of  limitations,  Emmons  i-.  Hay- 
ward,  11  Cush.  48;  nor  from  showing 
that  the  plaintiff  had  no  title  to  the  note 
sued  on.  Spaulding  v.  Hood,  8  Cush. 
602.  An  auditor's  report  in  favor  of  the 
plaintiff  will  not  give  the  defendant  the 
right  to  opc-n  and  close.  Snow  v.  Batch- 
elder,  8  Cush.  513.] 

J  Carter  v.  Jones,  6  C.  &  P.  64. 

2  Bedell  v.  Russell,  R.  Y.  &  M.  20,3  ; 
Fowler  V.  Coster.  1  M.  &  M.  241;  Revett 
V.  Braham,  4  T.  R.  497  ;  Hare  v.  Munn,  1 
M.  &  M.  241,  n. ;  Scott  v.  Hull,  8  Conn. 
296 ;  Burrcll  v.  Nicholson,  6  C.  &  P.  202  ; 
1  M.  &  R.  304,  .300;  Hoggett  i-.  Exley,  9 
C.  &  P.  324.  See  also  3  Chitty,  Gen. 
Practice,  872-877. 

3  Mercer  v.  Whall,  9  Jur.  576;  5  Ad. 
&  El.  N.  s.  447. 

*  Such  was  the  course  in  Young  v. 
Bairner,  1  Esp.  103,  which  was  assumpsit 
for  work,  and  a  plea  in  abatement  for  the 
non-joinder   of  other  defendants,   a.  p., 


Robey  v.  Howard,  2  Stark.  555;  s.  p., 
Stansfield  v.  Levy,  3  Stark.  8;  Lacon  v. 
Higgins,  2  Stark.  178,  where,  in  assumpsit 
for  goods,  coverture  of  the  defendant 
was  the  sole  plea;  Hare  v.  Munn,  1  M 
&  M.  241,  n.,  which  was  assumpsit  for 
money  lent,  with  a  plea  in  abatement 
for  the  non-joinder  of  other  defendants ; 
s.  p.,  Morris  v.  Lotan,  1  M.  c&  Rob.  233; 
Wood  V.  Pringle,  Id.  277,  which  was  an 
action  for  a  libel,  with  several  si)ecial 
pleas  of  justification  as  to  part,  but  no 
general  issue ;  and,  as  to  the  parts  not 
justified,  judgment  was  suffered  by  de- 
fault. See  ace.  Comstock  v.  Hadlvme, 
8  Conn.  261 ;  Aver  v.  Austin,  6  Pick."225 ; 
Hoggett  V.  E.xley,  9  C.  &  P.  324 ;  s.  c.  2 
M.  &  Rob.  251.  On  the  other  liand  are 
Cooper  V.  Wakley.  3  Car.  &  P.  474;  s.  c. 
1  M.  &  M.  248,  which  was  a  case  for  a 
libel,  with  j)leas  in  justification,  and  no 
general  issue;  but  tiiis  is  plainly  contra- 
dicted hy  the  subsequent  case  of  Wood 
V.  Pringle,  and  has  since  been  overruled 
in  Mercer  v.  Whall ;  Cotton  v.  James,  1 
M.  &  M.  273 ;  s.  c.  3  Car.  &  P.  505,  which 
was  trespass  for  entering  the  plaintiff's 
house,  and  taking  his  goods  with  a  plea 
of  justification  under  a  commission  of 
bankruptcy;  but  this  also  is  expressly 


CHAP,  m.] 


THE  BUBDEN   OF   PROOF 


97 


§  77.  In  proceedings  not  at  common  law.     Where  the  proceed- 
ings are  not  according  to  the  course  of  the  common  law,  and 


contradicted  in  Morris  v.  Lotan ;  Bedell 
V.  Russell,  Ky.  &  M.  293,  which  was  tres- 
pass of  assault  and  battery,  and  battery, 
and  for  shooting  the  plaintiff,  to  which  a 
justification  was  pleaded;  where  Best, 
J.,  reluctantly  yielded  to  the  supposed 
ruthority  of  Hodges  v.  Holden,  3  Campb. 
866,  and  Jackson  i\  Hesketh,  2  Stark. 
581 ;  in  neitlier  of  which,  however,  were 
the  damages  controverted  ;  Fish  v.  Trav- 
crs,  3  Car.  &  P.  578,  decided  by  Best,  J., 
on  the  authority  of  Cooper  v.  Wakley, 
and  Cotton  v.  James ;  Burrell  i».  Nichol- 
son, 6  Car.  S,  P.  202,  which  was  trespass 
for  taking  the  plaintiff's  goods  in  his 
house,  and  detahiing  them  one  hour, 
which  the  defendant  justified  as  a  dis- 
tress for  parish  rates  ;  and  the  only  issue 
was,  whether  the  house  was  within  the 
parish  or  not.  But  here,  also,  the  dam- 
ages were  not  in  dispute,  and  seem  to 
have  been  regarded  as  merely  nominal. 
See  also  Scott  r.  Hull,  8  Conn.  296.  In 
Norris  v.  Ins.  Co.  of  North  America,  3 
Yeates,  84,  which  was  covenant  on  a 
policy  of  insurance,  to  which  perform- 
ance was  pleaded,  tlie  damages  were  not 
then  in  dispute,  the  parties  having  pro- 
visionally agreed  upon  a  mode  of  liqui- 
dation. But  in  England  the  entire  sub- 
ject has  recently  undergone  a  review, 
and  the  rule  has  been  established,  as  ap- 
plicable to  all  personal  actions,  that  the 
plaintiff  shall  begin,  wherever  he  goes 
for  substantial  damages  not  already  as- 
certained. Mercer  v.  Whall,  9  Jur.  576  ; 
5  Ad.  &  El.  N.  s.  447.  In  this  case  Lord 
Denman,  C.  J.,  in  delivering  the  judg- 
ment of  the  court,  expressed  his  opinion 
as  follows:  "The  natural  course  would 
seem  to  be,  that  the  plaintiff  should 
bring  his  own  cause  of  complaint  before 
the  court  and  jury,  in  every  case  where 
be  has  any  thing  to  prove  either  as  to 
the  facts  necessary  for  his  obtaining  a 
verdict,  or  as  to  the  amount  of  damage 
to  which  be  conceives  the  proof  of  such 
facts  may  entitle  him.  The  law,  how- 
ever, has  bj'  some  been  supposed  to  differ 
from  this  course,  and  to  require  that  the 
defendant,  bj*  admitting  the  cause  of 
action  stated  on  the  record,  and  pleading 
only  some  affirmative  fact,  which,  if 
proved,  will  defeat  the  plaintiff's  action, 
may  entitle  himself  to  open  the  proceed- 
ing at  the  trial,  anticipating  tlie  plain- 
■  tiff's  statement  of  his  injury,  disparaging 
him  and  his  ground  of  complaint,  offer- 
ing or  not  offering,  at  his  own  option, 
any  proof  of  his   defensive  allegation, 

VOL.    I. 


and,  if  he  offers  that  proof,  adapting  it 
not  to  the  plaintiff's  case  as  established, 
but  to  that  which  he  chooses  to  repre- 
sent that  the  plaintiff's  case  will  be.  It 
appears  expedient  that  the  plaintiff 
should  begin,  in  order  that  the  judge, 
the  jury,  and  the  defendant  himself 
should  know  precisely  how  the  claim  is 
shaped.  This  disclosure  may  convince 
the  defendant  that  the  defence  which  he 
has  pleaded  cannot  be  established.  On 
hearing  the  extent  of  the  demand,  the 
defendant  may  be  induced  at  once  to  sub- 
mit to  it  rather  than  persevere.  Thus 
the  affair  reaches  its  natural  and  best 
conclusion.  If  this  does  not  occur,  the 
plaintiff,  by  bringing  forward  his  case, 
points  his  attention  to  the  proper  object 
of  the  trial,  and  enables  the  defendant 
to  meet  it  with  a  full  understanding  of 
its  nature  and  character.  If  it  were  a 
presumption  of  law,  or  if  experience 
prove  that  the  plaintiff's  evidence  must 
always  occupy  many  hours,  antl  that  the 
defendant's  could  not  last  more  than  as 
many  minutes,  some  advantage  would 
be  secured  by  postponing  the  plaintiff's 
case  to  that  of  the  defendant.  But,  first, 
the  direct  contrary  in  both  instances  may 
be  true;  and,  secondly,  the  time  would 
only  be  saved  by  stopping  the  cause  for 
the  purpose  of  taking  the  verdict  at  the 
close  of  the  defendant's  proofs,  if  that 
verdict  were  in  favor  of  the  defendant. 
This  has  never  been  done  or  proposed ; 
if  it  were  suggested,  the  jury  would  be 
likely  to  say,  on  most  occasions,  that 
they  could  not  form  a  satisfactory  opin- 
ion on  the  effect  of  the  defendant's 
proofs  till  they  had  heard  the  grievance 
on  which  the  plaintiff  founds  his  action. 
In  no  other  case  can  any  practical  ad- 
vantage be  suggested  as  arising  from 
this  method  of  proceeding.  Of  the  dis- 
advantages that  may  result  from  it,  one 
is  the  strong  temptation  to  a  defendant 
to  abuse  the  privilege.  If  he  well  knows 
that  the  case  can  be  proved  against  him, 
there  maj-  be  skilful  management  in 
confessing  it  by  his  plea,  and  affirming 
something  by  way  of  defence  which  he 
knows  to  be  untrue,  for  the  mere  pur- 
pose of  beginning."  See  9  Jur.  578;  5 
Ad.  &  El.  N.  s.  458.  Ordinarily  speak- 
ing, the  decision  of  the  judge,  at  Nisi 
Piius,  on  a  matter  resting  in  his  discre- 
tion, is  not  subject  to  revision  in  any 
other  court.  But  in  Hackman  (•.  Fernie, 
5  M.  &  W.  505,  the  court  observed  that, 
though   they  might  not  interfere  in  a 


98 


LAW   OF  EVIDENCE. 


[part  n. 


where,  consequently,  the  onus  prohandi  is  not  technically  pre- 
sented, the  courts  adopt  the  same  principles  which  govern  in 
proceedings  at  common  law.  Thus,  in  the  probate  of  a  will,  as 
the  real  question  is,  whether  there  is  a  valid  will  or  not,  the 
executor  is  considered  as  holding  the  affirmative  ;  and  therefore 
he  opens  and  closes  the  case,  in  whatever  state  or  condition  it 
may  be,  and  whether  the  question  of  sanity  is  or  is  not  raised.^ 

§  78.  Negative  allegations.  To  this  general  rule,  that  the  bur- 
den of  proof  is  on  the  party  holding  the  affirmative,  there  are 
some  exceptions,  in  which  the  proposition,  though  negative  in  its 
terms,  must  be  proved  by  the  party  who  states  it.  One  class  of 
these  exceptions  will  be  found  to  include  those  cases  in  which 
the  plaintiff  (/rounds  his  right  of  action  upon  a  negative  allegation, 
and  where,  of  course,  the  establishment  of  this  negative  is  an 
essential  element  in  his  case;^  as,  for  example,  in  an  action  for 


Tery  doubtful  case,  yet  if  tlie  decision  of 
tlie  judge  "were  clearly  and  manifestly 
wrong,"  tliey  would  interfere  to  set  it 
riglit.  In  a  subsequent  case,  however, 
it  is  said  that,  instead  of  "  were  clearly 
and  manifestly  wrong,"  the  language  act- 
ually uscil  by  the  court  was,  "did  clear 
and  manifest  wrong;"  meaning  tliat  it 
was  not  sufficient  to  show  merely  that 
the  wrong  party  liad  begun,  but  that 
some  injustice  liad  been  done  in  conse- 
quence. See  Edwards  v.  Mattliews,  11 
Jur.  398.  See  also  Geach  ;•.  Ingall,  9 
Jur.  691;  14  M.  &  W.  95.  [In  Page  v. 
Osgood,  2  Gray,  2G0,  the  question  arose, 
wlio  should  have  the  opening  and  close 
to  the  jury,  the  defendant  admitting  the 
plaintiff's  cause  of  action,  and  the  only 
issue  being  on  the  defendant's  declara- 
tion in  set-off;  wliicli  demand  in  set-off 
the  statute  provides  "sluiU  bo  tried  in 
like  manner  as  if  it  had  been  set  forth  in 
an  action  brought  by  him,"  and  there 
being  a  uniform  rule  of  court  giving  the 
right  of  oi)enitig  ami  closing  in  all  cases 
to  tlie  plaintiff.  The  court  hold  that 
there  was  no  reason  for  departing  from 
the  rule  which  had  been  found  to  be  of 
great  practical  convenience,  and  over- 
ruled the  exceptiuns,  thus  sustaining  tlie 
jilaintiff's  right  in  such  a  case  to  open 
an.l  close.  It  seems  to  have  been  con- 
sidered, in  s(jme  of  the  Anu'rican  States, 
that  in  actions  like  slander,  where  the 
defendant  admits  the  speaking  of  the 
words,  an<l  offers  evi(U'nce  in  justifica- 
tion, or  even  in  mitigation  of  damages, 
lie  is  entitlcfl  to  open  the  case,  (iaul 
r.  Fleming,  10  Ind.  lio.  Hut  tiiat  i)ri)j)- 
osition    is    certainly    not    maintainable. 


since  the  plaintiff  is  still  entitled  to 
give  evidence  of  facts  showing  special 
malice,  in  aggravation  of  damages,  and 
to  open  the  case  generally  upon  the 
question  of  damages.  Tlie  English  form 
of  expression  upon  tliis  point  will  go 
far  to  indicate  the  precise  inquiry  upon 
Avhich  the  riglit  should  turn.  The  in- 
quiry there  is,  which  party  has  tlie  right 
"to  begin"?  And  that  will  determine 
where  the  right  to  close  rests.  The 
party  first  required  to  give  proof  has  the 
opening  and  the  general  close  ;  the  other 
party  being  required  to  give  all  his  evi- 
dence, both  in  reply  to  plaintiff's  case 
and  support  of  his  own,  at  one  time, 
leaving  the  general  reply  to  the  other 
party.) 

^  liuckminster  v.  Perry,  4  Mass.  593; 
Brooks  v.  Barrett,  7  Pick*.  9-1;  Comstock 
V.  Iladlyme,  8  Conn.  254  ;  Ware  ".  Ware, 
8  Green!.  42;  Ilul)bard  v.  Iliibbard,  6 
Mass.  o97.  [Crowninshield  v.  Crownin- 
shield,  2  Gray,  524,  528.] 

-  1  Chitt  V  on  PI.  2l)i; ;  Spiers  v.  Parker, 
1  T.  R.  141";  Bex  r.  Pratten,  6  T.  B.  559  ; 
Holmes  v.  Love,  3  B.  &  C.  242;  Lane  v. 
Cromhie,  12  Pick.  177;  Harvey  i\  Tow- 
ers, 15  Jur.  544;  4  Eng.  Law  &  Eq.  Bep. 
531.  [Mr.  Taylor,  Ev.  §  389,  states  as 
an  e.\cc])tion,  that  where  the  affirmative 
is  sujiported  by  a  liL-piitahlc  presuM)[)tion 
of  law,  the  fiarty  sii]ii)crling  the  negative 
must  call  witnesses,  in  tlie  first  instance, 
to  overcome  this  presumption.  Williams 
V.  E.  India  Co.,  3  East,  192,  and  also  as 
another  exception  (ij  3 17)  that  where  the 
subject-matter  of  the  allegation  was  jie- 
culiarly  within  the  knowledge  of  one  of 
the  parties,  that  party  must  prove  its 


CHAP,  m.]  THE  BURDEN   OF  PROOF.  99 

having  prosecuted  the  plaintiff  maliciously  and  without  probable 
cause.  Here,  the  want  of  probable  cause  must  be  made  out  by 
the  plaintiff,  by  some  affirmative  proof,  though  the  proposition  be 
negative  in  its  terms. ^  So,  in  an  action  by  husband  and  wife,  on 
a  promissory  note  made  to  the  wife  after  marriage,  if  the  defend- 
ant denies  that  she  is  the  meritorious  cause  of  action,  the  burden 
of  proving  this  negative  is  on  him.^  So,  in  a  prosecution  for  a 
penalty  given  b}^  statute,  if  the  statute,  in  describing  the  offence,' 
contains  negative  matter,  the  count  must  contain  such  negative 
allegation,  and  it  must  be  supported  by  prima  facie  proof.  Such 
is  the  case  in  prosecations  for  penalties  given  by  statutes,  for 
coursing  deer  in  enclosed  grounds,  not  having  the  consent  of  the 
owner ;  ^  or  for  cutting  trees  on  lands  not  the  party's  own,  or 
taking  other  property,  not  having  the  consent  of  the  owner ;  *  or 
for  selling,  as  a  peddler,  goods  not  of  the  produce  or  manufacture 
of  the  country ;  ^  or  for  neglecting  to  prove  a  will,  without  just 
excuse  made  and  accepted  by  the  Judge  of  Probate  therefor.^ 
In  these,  and  the  like  cases,  it  is  obvious,  that  plenary  proof  on 
the  part  of  the  affirmant  can  hardly  be  expected ;  and,  therefore, 
it  is  considered  sufficient  if  he  offer  such  evidence  as,  in  the 
absence  of  counter  testimony,  would  afford  ground  for  presuming 
that  the  allegation  is  true.  Thus,  in  an  action  on  an  agreement 
to  pay  £100,  if  the  plaintiff  would  not  send  herrings  for  one  year 
to  the  London  market,  and,  in  particular,  to  the  house  of  J.  &  A. 
Millar,  proof  that  he  sent  none  to  that  house  was  held  sufficient 
to  entitle  him  to  recover,  in  the  absence  of  opposing  testimony .^ 
And  generally,  where  a  party  seeks,  from  extrinsic  circumstances, 
to  give  effect  to  an  instrument  which,  on  its  face,  it  would  not 
have,  it  is  incumbent  on  him  to  prove  those  circumstances,  though 
involving  the  proof  of  a  negative  ;  for,  in  the  absence  of  extrinsic 
proof,  the  instrument  must  have  its  natural  operation,  and  no 
other.     Therefore,  where  real  estate  was  devised  for  life  with 

entry.    Dickson  v.  Evans,  6  T.  R.     But  ^  Commonwealth  v.  Samuel,  2  Pick, 

see  Elk  in  v.  Janson,  13  M.  &  N.  662.]  103. 

5  PurccU  V.  Macnamara,  1  Campb.  190;  ^  Smith  v.  Moore,  6  Greenl.  274.     See 

8.  c.  9   East,  361;    Ulnier  v.  Leland,  1  other  examples  in  Commonwealth  r.  Max- 

Greenl.  134;    Gibson   v.    Waterhouse,  4  well,  2  Pick.  139 ;  1  East,  P.  C.  166,  §  15; 

Greenl.  226.  Williams  v.  Hingham  and  Quincy  Turn- 

2  Pliilliskirk  V.  Pluckwell,  2  M.  &  S.  pike  Co.,  4  Pick.  341 ;  Rex  v.   Stone,  1 
895 ;  per  Bavley,  J.  East,  637 ;  Rex  v.  Burditt,  4  B.  &  Aid.  95, 

3  Rex  1-.  Rogers,  2  Campb.  654;  Rex  140;    Rex   v.   Turner,   5  M.   &  S.  206; 
V.  Jarvis,  1  East,  643,  n.  Woodbury  v.  Frink,  14  111.  279. 

*  Little  r.  Thompson,  2  Greenl.  128;  ''  Calder  v.  Rutherford,  3  B.  &  B.  302; 

Rex  V.  Hazy  et  at.,  2  C.  &  P.  458.  8.  c.  7  Moore,  158. 


100 


LAW   OF  EVIDENCE. 


[part  n. 


power  o/  appointment  by  will,  and  the  devisee  made  his  will, 
devising  all  his  lands,  but  without  mention  of  or  reference  to  the 
power,  it  was  held  no  execution  of  the  power,  unless  it  should 
appear  that  he  had  no  other  lands  ;  and  that  the  burden  of  show- 
ing this  negative  was  upon  the  party  claiming  under  the  will  as 
an  appointment.^ 

§  79.  Negative  allegations.  But  where  the  subject-matter  of  a 
negative  averment  lies  peculiarly  ivithin  the  hioivledge  of  the 
other  party,  the  averment  is  taken  as  true,  unless  disproved  by 
that  party.  Such  is  the  case  in  civil  or  criminal  j)rosecutions  for 
a  penalty  for  doing  an  act  which  the  statutes  do  not  permit  to  be 
done  by  any  persons,  except  those  who  are  duly  licensed  therefor ; 
as,  for  selling  liquors,  exercising  a  trade  or  profession,  and  the 
like.  Here  the  party,  if  licensed,  can  immediately  show  it,  with- 
out the  least  inconvenience ;  whereas,  if  proof  of  the  negative 
were  required,  the  inconvenience  would  be  very  great.^ 


1  Doe  V.  Johnson,  7  Man.  &  Gr.  1047. 

2  Rex  V.  Turner,  5  M.  &  S.  206  [but 
Alderson,  B.,  in  Elkin  v.  Janson  (13 
M.  &  W.  G02),  referring  to  Rex  v.  Tur- 
ner, doubted  whether  the  expressions 
of  tlie  judge  in  that  case  were  not  too 
strong,  and  thouglit  that,  tliough  sound 
as  to  tlie  right  of  evidence,  tliere  should 
be  some  evidence  in  order  to  cast  tlie 
onus  on  the  other  side]  ;  Smith  v.  Jeffries, 
9  Price,  2-57 ;  .Slieldon  v.  Clark,  1  Jolins. 
513;  United  States  r.  Hayward,  2  Gall. 
485;  Gening  v.  Tlie  State,  1  McCord, 
673;  Commonwealth  v.  Kimball,  7  Met. 
304;  Harrison's  case,  Paley  on  Conv. 
45,  n. ;  Apothecaries'  Co.  v.  Bentley,  \\y. 

6  Mood.  159  ;  Haskill  i".  Tiie  Common- 
wealth, 3  B.  Monr.  342;  The  State  v. 
Morrison,  3  Dev.  2y'J  ;  The  State  ;•.  Crow- 
ell,  12  Shepl.  171  ;  Sliearer  v.  The  State, 

7  Blackf.  yj.  [But  the  authorities  differ 
on  this  point.  In  North  Carolina  (State 
V.  Evans),  5  Jones,  L.  250,  it  is  held  that 
the  State  negativing  a  license  must  prove 
the  negative.  So  they  differ  as  to  the 
burden  of  proof  where  the  seller  of  in- 
toxicating liquor  sues  for  the  power.  In 
I'enn.sylvania  it  is  held  that  the  jjurcliaser, 
denying  tlie  license,  must  prove  his  denial. 
Elsewhere  it  is  held  that  the  »(i\\vr  must 
sliow  his  license  to  sell.  Bliss  v.  Brainard, 
41  N.  11.  250;  Solomon  v.  Dreschler,  4 
Minn.  278;  Kane  v.  Johnston,  9  Bosw, 
N.  Y.  154.]  By  a  statute  of  Massnchnsctts, 
1844,  c.  102,  the  burden  of  proving  a 
license  for  the  sale  of  liquors  is  expressly 
devolved  on  the  ])ers()n  selling,  in  all 
proaeculious  for  selling  liquors  without 


a  license.  [See  also  Commonwealth  v. 
Thurlow,  24  Pick.  374,  381,  which  was 
an  indictment  against  the  defendant  for 
presuming  to  be  a  retailer  of  spirituous 
liquors  without  a  license  therefor.  In  this 
case  the  court  did  not  decide  the  general 
question,  saying  that  "  cases  may  be  af- 
fected by  special  circumstances,  giving 
rise  to  distinctions  applicable  to  them  to 
be  considered  as  they  arise,"  but  held 
under  that  indictment  that  the  govern- 
ment must  produce  jn'nnn  fucie  evidence 
that  the  defendant  was  not  licensed. 
See  post,  vol.  iii.  §  24  and  n.  In  Com- 
monwealth V.  Kimball,  7  Met.  304,  the 
court  held,  in  a  similar  indictment,  that 
the  docket  and  minutes  of  the  county 
commissioners,  before  their  records  are 
made  up,  arc  competent  evidence,  and  if 
no  license  to  the  defendant  appears  on 
such  docket  or  minutes  (the  county  coni- 
missioners  heing  the  sole  authority  to 
grant  licenses),  it  is  prima  facie  evidence 
that  the  defendant  was  not  licensed. 

It  has  been  decided  that  the  provisions 
of  the  Massachusetts  Act  of  1844,  c.  102, 
do  not  apply  to  indictments  under  the  law 
of  18.55,  c.  405,  which  enacts  that  all 
buildings,  &c.,  used  for  tlie  illegal  sale  or 
keeping  of  intoxicating  liquors,  shall  be 
deemed  common  nuisances;  an  act  of 
the  same  year  (Acts  1855,  c.  215),  mak- 
ing any  sale  or  keeping  for  sale,  within 
the  State,  of  intoxicating  liquors  unless 
in  the  original  packages,  «.^c.,  without 
authority,  an  unlawful  and  criminal  act. 
This  was  decided  in  Commonwealth  v. 
Lahey,  S.  J.  C.  Berkshire,  Sept.  T.  1857. 


CHAP,  in.]  THE  BUEDEN   OF   PROOF.  101 

§  80.  Negative  allegations.  So,  where  the  negative  allegation 
involves  a  charge  of  criminal  neglect  of  duty^  whether  official  or 
otherwise ;  or  fraud ;  or  the  wrongful  violation  of  actual  lawful 
possession  of  property ;  the  party  making  the  allegation  must 
prove  it ;  for  in  these  cases  the  presumption  of  law,  which  is 
always  in  favor  of  innocence  and  quiet  possession,  is  in  favor  of 
the  party  charged.^  Thus,  in  an  information  against  Lord  Hali- 
fax ^  for  refusing  to  deliver  up  the  rolls  of  the  Auditor  of  the  Ex- 
chequer, in  violation  of  his  duty,  the  prosecutor  was  required  to 
prove  the  negative.  So,  where  one  in  office  was  charged  with 
not  having  taken  the  sacrament  within  a  year ;  and  where  a  sea- 
man was  charged  with  having  quitted  the  ship,  without  the  leave 
in  writing  required  by  statute  ;  and  where  a  shipper  was  charged 
with  having  shipped  goods  dangerously  combustible  on  board  the 
plaintiffs  ship,  without  giving  notice  of  their  nature  to  any  officer 
on  board,  whereby  the  ship  was  burned  and  lost ;  in  each  of 
these  cases,  the  party  alleging  the  negative  was  required  to  prove 
it.2  So,  where  the  defence  to  an  action  on  a  policy  of  insurance 
was,  that  the  plaintiff  improperly  concealed  from  the  underwriter 
certain  facts  and  information  which  he  then  already  knew  and 
had  received,  it  was  held  that  the  defendant  was  bound  to  give 
some  evidence  of  the  non-communication.^  So,  where  the  goods 
of  the  plaintiff  are  seized  and  taken  out  of  his  possession,  though 
for  an  alleged  forfeitui-e  under  the  revenue  laws,  the  seiziu'e  is 
presumed  unlawful  until  proved  otherwise.* 

not  yet  reported;  which  was  an  indict-  of  the  plaintiff's  debtor,  the   burden  of 

ment  under  the  Act  of  1855,  c.  405,  for  proving  that  the  property  was  so  far  the 

maintaining  a  common  nuisance  in  keep-  debtor's  as  to  be  liable  to  attachment  as 

ing  a  building  used  for  the  illegal  sale  of  his  is  upon  the  plaintiff  throughout,  al- 

intoxicating  liquors.      The  court  below  though  the  defendant  claims  the  title  to 

ruled  that  the  government  need  not  show  himself  under  a  purchase  from  the  debtor, 

that  the  defendant  was  not  licensed,  but,  Phelps  v.  Cutler,  4  Gray,  13'J.] 
if  tlie  defendant  relied  on  a  license  to  sell  «  Elkin  v.  Janson,  13  M.  &  W.  655. 

in  his  defence,  he  should  show  that  fact.  *  Aitcheson  v.  Maddock,  Peake's  Caa. 

The    Supreme   Judicial  Court  sustained  162.     An  exception  to  this  rule  is  adrait- 

the  exceptions  to  this  ruling.    See  note  of  ted  in  Chancery  in  the  case  of  attorney 

the  decision  in  this  case  in  20  Law  Hep.  and  client ;  it  being  a  rule  there,  that  if 

(Oct.  1857)  352.1  the  attorney,  retaining  the  connection, 


1  [Ante,  §  35.J  contracts  with  his  client,  he  is  subject  to 

2  United  States  v.  Hayward,  2  Gall,  the  burden  of  proving  that  no  advantage 
498  ;  Hartwell  v.  Root,  19  Johns.  345  ;  has  been  taken  of  the  situation  of  the  lat- 
Bull.  N.  P.  [298]  ;  Rex  v.  Hawkins,  10  ter.  1  Story,  Eq.  Jur.  §  311 ;  Gibson  v. 
East,  211 ;  Prontine  v.  Frost,  3  B.  &  P.  Jeyes,  6  Ves;  278 ;  Cane  v.  Ld.  Allen,  2 
302  ;  Williams  v.  E.  India  Co.,  3  East,  Dow,  289,  294,  299.  [So  in  trespass 
192.  See  also  Commonwealth  v.  Stow,  1  brought  by  the  owner  of  land  against  a 
Mass.  54 ;  Evans  v.  Birch,  3  Campb.  10.  railroad  corporation,  where  the  plaintiff 
[So  in  an  action  against  an  officer  for  neg-  has  shown  his  title  to  the  land,  the  entry 
lecting  to  attach  property  as  the  property  by  the  defendants  and  the  construction 


102 


LAW   OF   EVIDENCE. 


[PAET  n. 


§  81.  Infancy,  insanity,  death,  negligence,  failure  of  consideration. 
So,  where  infancy  is  alleged ;  ^  or,  where  one  born  in  lawful  wed- 
lock is  alleged  to  be  illegitimate^  the  parents  not  being  separated 
by  a  sentence  of  divorce  ;  ^  or,  where  iyisanity  is  alleged ;  ^  or,  a  per- 
son once  living  is  alleged  to  be  dead,  the  presumption  of  life  not 
being  yet  worn  out  by  lapse  of  time  ;  ^  or,  where  nonfeasance  or 
negligence  is  alleged,  in  an  action  on  contract ;  ^  or,  Avhere  the 
want  of  a  due  stamp  is  alleged,  there  being  faint  traces  of  a  stamp 
of  some  kind ;  ^  or,  where  a  failure  of  consideration  is  set  up  by 
the  plaintiff,  in  an  action  to  recover  the  money  paid  ;  '^  or,  where 
the  action  is  founded  on  a  deficiency  in  the  quantity  of  land  sold, 
and  the  defendant  alleges,  in  a  special  plea,  that  there  was  no 
deficiency ;  ^  the  burden  of  proof  is  on  the  party  making  the  alle- 
gation, notwithstanding  its  negative  character. 

[§  81  a.  In  actions  upon  promissory  notes  or  bills  of  exchange,  if  it  be  shown  that 
they  were  stolen,  or  otherwise  fraudulently  put  in  circulation,  the  burden  of  proof  is 
on  the  liolder  to  show  that  he  took  them  in  good  faith.  IMonroe  v.  Cooper,  5  Pick. 
412;  Worcester  Co.  Bank  v.  Dorchester,  &c.  Bank,  10  Cush.  488,  491 ;  Wyer  v.  Dor- 
chester, &c.  Bank,  11  Cush.  52;  Bissell  v.  Morgan,  lb.  198;  Fabens  v.  Tirrell,  15 
Law  Rep.  (May,  1852)  44;  Perrin  v.  Noyes,  39  Maine,  384;  Goodman  v.  Harvey,  4 
Ad.  &  El.  870 ;  Arbourn  v.  Anderson,  1  Ad.  &  El.  N.  R.  504.  According  to  recent 
decisions,  that  burden  is  very  light.     Worcester  Co.  Bank  v.  Dorchester,  &c.  Bank ; 


of  their  road  upon  it,  the  defendants  must 
justify  by  showing  that  tliis  land  is 
covered  by  tlie  authorized  location  of 
their  road.  Hazen  v.  Boston  &  Maine 
R.  R.  2  Gray,  574,  579.  Where  such 
land  is  sliown  or  admitted  to  be  so  cov- 
ered by  the  location,  tiie  burden  does 
not  rest  on  tlie  corporation  or  its  ser- 
vants, to  show  that  acts  done  on  such 
land,  as  cutting  down  trees,  were  done 
for  the  purposes  of  the  road.  Brainard  v. 
Clapp,  10  Cusli.  6.  So  every  imprison- 
n)cnt  of  a  man  is,  prima  facie,  a  trespass  ; 
and  in  an  action  to  recover  damages 
therefor,  if  tlie  imprisonment  is  proved 
or  admitted,  the  burden  of  justifying  it 
is  on  tiie  defendant.  Metcalf,  J.,  in 
Bassett  v.  Porter,  10  Cush.  420.] 

1  Borthwick  v.  Carruthers,  1  T.  R. 
648. 

-  Case  of  the  Banbury  Peerage,  2 
Selw.  N.  P.  (by  Wheaton)  558;  Morris 
«'.  Daviee,  3  Car.  &  P.  613.  [Tlie  pre- 
sumption of  the  legitimacy  of  a  ciiild  of 
a  married  woman  can  only  be  rebutted 
by  evidence  wiiich  proves  beyond  all 
reasonable  doubt  that  her  husband  could 
not  have  been  the  father.  Philips  v. 
Allen,  2  Allen  (Mass.),  453;  ante,  §  28.] 

3  Attorney-General  v.  Paruther,  3  Bro. 


C.  C.  441,  443,  per  Lord  Thurlow  ;  cited 
with  approbation  in  White  v.  Wilson, 
13  Ves.  87,  88;  Hoge  v.  Fisher,  1  Pet.  C. 
C;  103. 

*  Throgmorton  v.  Walton,  2  Roll.  461 ; 
Wilson  V.  Hodges,  2  East,  313;  supra, 
§41. 

5  Crowley  v.  Page,  7  C.  P.  790  ;  Smith 
V.  Davies,  Id.  307 ;  Clarke  v.  Spence,  10 
Watts,  335;  Story  on  Bailm.  §§  454, 
457,  n.  (3d  ed.);  Brind  v.  Dale,  8  C.  & 
P.  207.  See  further,  as  to  the  right  to 
begin,  and,  of  course,  the  burden  of  proof, 
Pontife.x  v.  Jolly,  9  C.  &  P.  202 ;  Harnett 
V.  Johnson,  Id.  206  ;  Aston  v.  Perkes,  Id. 
231 ;  Osborn  v.  Thompson,  Id.  337  ;  Bing- 
ham V.  Stanley,  Id.  374;  Lambert  v.  Hale, 
Id.  506 ;  Lees  v.  Hoffstadt,  Id.  599  ;  Chap- 
man I'.  Emdcn,  Id.  712;  Doe  i'.  Rowlands, 
LI.  734;  Ridgway  v.  Ewbank,  2  M.  & 
Rob.  217;  Hudson  v.  Brown,  8  C.  &  P. 
774  ;  So  ward  v.  Lcggatt,  7  C.  &  P.  (313; 
Bowles  V.  Neale,  Id.  262 ;  Richardson  v. 
Fell,  4  Dowl.  10;  Silk  v.  Humphrey,  7 
C.  &  P.  14. 

*  Doe  V.  Coombes,  3  Ad.  &  El.  n.  8. 
687. 

T  Treat  v.  Orono,  13  Shcpl.  217. 
8  McCrea  v.  Marshall,  1  La.  An.  29. 


CHAP,  ni.]  THE  BUKDEN  OF  PROOF.  103 

Wycr  V.  Dorchester,  &c.  Bank,  itbi  supra.  But  wliere  the  action  is  by  the  holder  of  a 
bank-bill,  and  the  defendant  proves  it  to  have  been  stolen,  the  plaintiff  is  not  bound 
to  show  how  he  came  by  the  bill,  to  enable  him  to  recover  upon  it,  but  the  defendant, 
to  defeat  the  plaintiff's  right  to  recover  upon  it,  must  show  that  he  received  it  under 
such  circumstances  as  to  prevent  the  maintenance  of  his  action.  Wyer  v.  Dor- 
chester, &c.  Bank,  uln  supra;  Solomons  v.  Bank  of  England,  13  East,  135,  n. ;  De 
la  Chaumette  v.  Bank  of  England,  2  Barn.  &  Adolph.  385.  And  see  post,  vol.  ii. 
§  172.  When  goods  are  obtained  from  their  owner  by  fraud,  the  burden  of  proof 
is  upon  one  who  claims  under  the  fraudulent  purchaser  to  show  that  he  is  a  bona 
Jide  purchaser  for  value.     Haskins  v.  Warren,  115  Mass.  514. 

§  81  b.  It  would  seem  to  be  the  true  rule  in  criminal  cases,  though  there  are  some 
decisions  to  the  contrary,  that  the  burden  of  proof  never  shifts,  but  that  it  is  upon 
the  government  throughout ;  and  that  in  all  cases,  before  a  conviction  can  be  had,  the 
jury  must  be  satisfied,  upon  all  the  evidence,  beyond  a  reasonable  doubt,  of  the 
affirmative  of  the  issue  presented  by  the  government;  to  wit,  that  the  defendant  is 
guilty  in  manner  and  form  as  charged  in  the  indictment.  The  opinion  of  the  court, 
by  Bigelow,  J.,  in  the  case  of  Commonwealth  v.  McKie,  1  Gray,  61-65,  contains  an 
acceptable  and  very  able  exposition  of  the  general  rule  of  law  as  to  the  burden  of 
proof  in  criminal  cases,  but  it  is  too  extensive  to  be  here  inserted. 

§  81  c.  Although  the  above  decision  is  carefully  limited  to  that  precise  case,  yet  it 
would  seem  that  its  principle  would  cover  all  cases,  including  those  in  which  the  de- 
fendant relies  on  some  distinct  substantive  ground  of  defence  not  necessarily  connected 
with  the  transaction  on  which  the  indictment  is  founded,  as  insanity  for  instance. 
For  in  every  case  the  issue  which  the  government  presents  is  the  guilt  of  the  defendant, 
and  to  prove  this  the  jury  must  be  satisfied  not  only  that  the  defendant  committed 
the  act  constituting  tlie  corpus  delicti,  but  also  that,  at  the  time  of  the  commission 
thereof,  he  had  intelh'gence  and  capacity  enough  to  have  a  criminal  intent  and  pur- 
pose ;  because,  "  if  his  reason  and  mental  powers  are  either  so  deficient  that  he  has 
no  will,  no  conscience  or  controlling  mental  power,  or  if,  through  the  overwhelming 
violence  of  mental  disease,  his  intellectual  power  is  for  the  time  obliterated,  he  is 
not  a  responsible  moral  agent,  and  is  not  punishable  for  criminal  acts."  By  Shaw, 
C.  J.,  in  Commonwealth  v.  Rogers,  7  Met.  501 ;  see  Commonwealth  v.  Hawkins,  3 
Gray,  465 ;  1  Bennett  &  Heard's  Lead.  Crim.  Cas.  87,  note  to  Commonwealth  v. 
Rogers,  and  p.  347,  note  to  Commonwealth  v.  Mclvie.  And  if  the  burden  is  on  the 
government  thus  to  satisfy  the  jury,  it  is  difficult  to  see  why  the  rule  of  proof  beyond 
a  reasonable  doubt  does  not  apply  ;  and  why  a  reasonable  doubt  of  the  insanity  of 
the  defendant  should  not  require  the  jury  to  acquit. 

In  the  more  recent  case  of  Commonwealth  v.  Eddy,  7  Gray,  583,  which  was  an 
indictment  against  the  defendant  for  the  murder  of  his  wife,  and  in  which  the  insanity 
of  the  defendant  was  pressed  to  the  jury  as  a  defence,  the  court  instructed  the  jury 
in  substance  that  the  burden  of  proof  was  on  the  government  throughout,  and  did 
not  shift;  although,  so  far  as  the  sanity  of  the  defendant  was  concerned,  the  burden 
was  sustained  by  the  legal  presumption  that  all  men  are  sane,  wliich  presumption 
must  stand  until  rebutted  by  proof  to  the  contrary,  satisfactory  to  the  jury. 

Subsequently  in  Pomeroy's  case  (117  Mass.  143),  although  it  was  intimated  that 
Com.  V.  Eddy  was  not  a  binding  authority,  but  only  the  opinion  of  three  judges, 
the  court  held  the  following  language :  "  The  burden  is  upon  the  government  to 
prove  every  thing  essential  beyond  reasonable  doubt ;  and  that  burden,  so  far  as  tlie 
matter  of  insanity  is  concerned,  is  ordinarily  satisfactorily  sustained  by  the  pre- 
sumption that  every  person  of  sufficient  age  is  of  sound  mind  and  understands  the 
nature  of  his  acts.  But  when  the  circumstances  are  all  in,  on  the  one  side  going  to 
show  a  want  of  adequate  capacity,  on  the  other  side  going  to  show  usual  intelligence, 


104  LAW   OF  EVIDENCE.  [PAET  H. 

the  burden  rests,  where  it  was  in  the  beginning,  upon  the  government  to  prove  the 
case  bej'ond  reasonable  doiibt."  See  also  State  v.  Pike,  49  N.  H.  395  ;  State  v.  Jones, 
50  N.  H.  370.  And  this  perhaps  is  the  prevailing  opinion.  People  v.  Garbutt,  17 
Mich.  9;  State  v.  Crawford,  11  Kan.  32.  But  it  does  not  seem  to  be  accepted  in 
New  York  (Flanagan  i'.  People,  52  N.  Y.  407),  where  it  is  held  that  insanity  must  be 
proved  by  a  preponderance  of  evidence,  and  it  is  not  sutScient  for  the  prisoner  to 
raise  a  doubt.  And  the  law  in  Pennsylvania  substantially  accords  with  that  of  New 
York.  Lynch  v.  Com.,  77  Pa.  St.  205 ;  Ortwein  v.  Com.,  76  Pa.  St.  414.  The  cases 
on  this  subject  are  very  fully  collected  and  stated  in  a  note  to  State  r.  Crawford, 
Sup.  Ct.  Kansas,  23  Am.  L.  Keg.  n.  s.  21.  And  see  also  Wharton's  Hom.  §  G66; 
post,  vol.  iii.  §  5. 

Where  liquors  are  not  by  law  vendible  without  a  license,  the  presumption  that 
the  defendant  has  no  license  is  sufficient  proof  of  the  case  for  the  prosecution  to 
call  upon  the  defendant  to  rebut  it.  Bliss  v.  Brainard,  41  N.  H.  25G  ;  ante,  §  79,  n. ; 
Wheat  V.  State,  6  Mo.  455.  On  an  indictment  for  perjury  for  falsely  swearing  to 
ownership  in  a  certain  house,  it  was  intimated  that,  on  proof  of  prior  ownership  by 
the  wife  of  the  defendant,  tlie  presumption  that  she  continued  to  own  it  sufficiently 
proved  the  negative  for  the  government.  Com.  v.  Hatfield,  107  Mass.  227.  If  a  pris- 
oner pleads  that  he  was  under  the  age  of  presumed  capacity,  the  burden  of  proof  is 
upon  him.  State  v.  Arnold,  13  Ired.  (N.  C.)  Law,  184.  In  Com.  v.  Choate  (105  Mass. 
452),  it  was  held  that  where  an  alibi  was  set  up,  a  charge  to  the  jury  that  when  the 
defendant  wished  them  to  take  as  an  affirmative  matter  of  fact  proved,  that  he  was 
at  a  certain  place  at  a  certain  time,  the  burden  of  proof  was  upon  him,  and,  if  he 
failed  to  sustain  the  burden,  they  could  not  consider  it  as  a  fact  proved  ;  but  that 
the  burden  was  upon  the  government  to  show  the  defendant's  presence  at  tlie  com- 
mission of  the  crime,  and  on  that  question  they  were  to  consider  all  his  evidence 
tending  to  prove  an  alibi,  and  if  on  all  the  evidence  they  entertained  a  reasonable 
doubt  as  to  his  presence  they  should  acquit,  —  was  unobjectionable.  But  in  Pennsyl- 
vania it  has  been  held,  as  in  the  insanity  cases  above  cited,  that  it  is  not  enough 
for  the  defendant  to  raise  a  doubt.  Fife  v.  Com.,  29  Pa.  St.  439.  AVlien  a  party 
drives  over  a  person  in  the  street  and  kills  him,  and  is  indicted  for  manslaughter, 
the  government  need  not  show  negligence  on  the  part  of  the  accused ;  but,  on  prov- 
ing the  killing,  the  accused  may  be  called  upon  to  show  that  he  used  due  care.  Reg. 
V.  Cavendish,  8  Irish  (C.  L.)  178  (Ct.  for  Cr.  Cases  reserved),  O'Brien,  J.,  dissent- 
ing. In  an  action  against  a  carrier  for  injuries  resulting  from  his  negligence, 
proof  of  the  injury  is  prima  facie  proof  of  negligence,  and  throws  on  tlie  carrier  the 
burden  of  disproving  it.  Tennery  v.  Pippinger,  1  Phila.  543  ;  Ware  v.  Gay,  11  Pick. 
(Mass.)  106.  In  criminal  cases,  where  the  defendant  justifies,  the  proof  of  justifica- 
tion must  be  by  a  preponderance  of  evidence.    People  v.  Schryver,  42  N.  Y.  1. 


CHAP.  IV.]  THE  BEST  EVn)ENCE.  105 


CHAPTER  IV. 

OF  THE  BEST  EVHDENCE. 

§  82.  Best  evidence  required.  A  fourth  rule,  which  governs  in 
the  production  of  evidence,  is  that  wliich  requires  the  best  evi- 
dence of  ivhich  the  case  in  its  tiature  is  susceptible.  This  rule  does 
not  demand  the  greatest  amount  of  evidence  which  can  possibly 
be  given  of  any  fact ;  but  its  design  is  to  prevent  the  introduction 
of  any  which,  from  the  nature  of  the  case,  supposes  that  better 
evidence  is  in  the  possession  of  the  party.  It  is  adopted  for  the 
prevention  of  fraud ;  for  when  it  is  apparent  that  better  evidence 
is  withheld,  it  is  fair  to  presume  that  the  party  had  some  sinister 
motive  for  not  producing  it,  and  that,  if  offered,  his  design  would 
be  frustrated.^  The  rule  thus  becomes  essential  to  the  pure  ad- 
ministration of  justice.  In  requiring  the  production  of  the  best 
evidence  applicable  to  each  particular  fact,  it  is  meant  that  no 
evidence  shall  be  received  which  is  merel}"  substitutionary  in  its 
nature,  so  long  as  the  original  evidence  can  be  had.  The  rule 
excludes  only  that  evidence  which  itself  indicates  the  existence 
of  more  original  sources  of  information.  But  where  there  is  no 
substitution  of  evidence,  but  only  a  selection  of  weaker,  instead 
of  stronger  proofs,  or  an  omission  to  supply  all  the  proofs  capable 
of  being  produced,  the  rule  is  not  infringed.^  Thus,  a  title  by 
deed  must  be  proved  by  the  production  of  the  deed  itself,  if  it  is 
within  the  power  of  the  party  ;  for  this  is  the  best  evidence  of 
which  the  case  is  susceptible  ;  and  its  non-production  would  raise 
a  presumption  that  it  contained  some  matter  of  apparent  defea- 
sance. But,  being  produced,  the  execution  of  the  deed  itself  may 
be  proved  by  only  one  of  the  subscribing  witnesses,  though  the 
other  also  is  at  hand.  And  even  the  previous  examination  of  a 
deceased  subscribing  witness,  if  admissible  on  other  grounds,  may 

1  "Falsi  prsesumptio  est  contra  eum,  on  Evid.  266-278;  Tayloe  v.  Riggs,  1 
qui  testibus  probare  conatur  id  quod  in-  Peters,  591,  596 ;  United  States  v.  Eey- 
strumentis  probare  potest."  Henoch,  burn,  6  Peters,  352,  367  ;  Minor  v.  Tillot- 
Consil.  422,  n.  125.  son,  7  Peters,  100,  101  [Shoenbergher  v. 

2  Phil.  &  Am.  on  Evid.  438 ;  1  Phil.  Hackman,  37  Penn.  St.  887]. 
Evid.  418;  1  Stark.  Evid.  437  ;  Glassford 


106  LAW   OF  EVIDENCE.  [PAET  H. 

supersede  the  necessity  of  calling  the  survivor.^  So,  in  proof  or 
disproof  of  handwriting,  it  is  not  necessary  to  call  the  supposed 
writer  himself.^  And  even  where  it  is  necessary  to  j)i'ove  nega- 
tively, that  an  act  was  done  without  the  consent,  or  against  the 
will,  of  another,  it  is  not,  in  general,  necessary  to  call  the  person 
whose  will  or  consent  is  denied.^ 

§  83.  Exceptions.  All  rules  of  evidence,  however,  are  adopted 
fcr  practical  purposes  in  the  administration  of  justice  ;  and  must 
be  so  applied  as  to  promote  the  ends  for  which  they  were  designed.* 
Thus,  the  rule  under  consideration  is  subject  to  ezeejjtions,  where 
the  general  convenience  requires  it.  Proof,  for  example,  that  an 
individual  has  acted  notoriously  as  a  public  officer,  is  prima  facie 
CAddence  of  his  official  character,  without  producing  his  commis- 
sion or  appointment.^ 

§  84.  Primary    and    secondary    evidence.       This    rule    naturally 

leads  to  the  division  of  evidence  into  Peeniaky  and  Secondary. 
Primary  evidence  is  that  which  we  have  just  mentioned  as  the 
best  evidence,  or  that  kind  of  proof  which,  under  any  possible 
circumstances,  affords  the  greatest  certainty  of  the  fact  in  ques- 
tion :  and  it  is  illustrated  by  the  case  of  a  written  document ;  the 
instrument  itself  being  always  regarded  as  the  primary  or  best 
possible  evidence  of  its  existence  and  contents.  If  the  execution 
of  an  instrument  is  to  be  proved,  the  primary  evidence  is  the 
testimony  of  the  subscribing  witness,  if  there  be  one.  Until  it  is 
shown  that  the  production  of  the  primary  evidence  is  out  of  the 
party's  power,  no  other  proof  of  the  fact  is  in  general  admitted.^ 

1  Wriglit  V.  Tatham,  1  Ad.  &  El.  3.  Ad.  &  El.  n.  s.  478 ;  infra,   §  02.     But 

[See  infra,  §§  569-575.]  there  must  be  some  color  of  rie-ht  to  the 

-  Hughes'   case,  2   East,  P.  C.  1002;  office,  or  an  acquiescence  on  tlie  part  of 

McGuire's  case,  lb.;   Rex  f.  Benson,  2  tlie  public  for  such  lenijtli  of  time  as  will 

Campb.  508.  authorize  the  presumption  of  at  least  a 

3  Supra,  §  77;  Rex  v.  Hazy  &  Colling,  colorable  election  or  appointment.     Wil- 

2  C.  &  P.  458.  cox  V.  Smith,  6  Wend.  201,  284.     This 

<  [See/'o.s',  §  348;  Greenwood  u.  Cur-  rule  is   applied  only  to   public    offices, 

tis,  6  Mass.  .358.]  Where  the  office  is  private,  some  proof 

^  United  States  v.  Reyburn,  6  Peters,  must  be  offered  of  its  existence,  and  of 

352,  3G7  ;  Rex  v.  Gordon,  2  Leach,  Cr.  C.  the  appointment  of  the  agent  or  incum- 

6S1,  685,  5,%  ;  Rex  v.  Shelley,  Id.  381,  n. ;  bent.    Short  v.  Lee,  1  Jac.  &  W.  464.  468. 

J;'.cob  V.  United  States,  1  Brockenb.  520;  [Where  a  note  was  indorsed  by  a  person 

Milnor  y.  Tillotson,  7   Peters,  100,  101;  as  president  of  an  incorporateil  insurance 

Berryman  i».  Wise,  4  T.  R.  3'>6 ;  Bank  of  conipan.v,   the   indorsee   may  prove   by 

U.  States  V.  Dandridgo,   12  Wheat.  70;  parol   that   he   acted   as   president,  and 

Doe  V.  Brawn,  5  B.  &  A.  243;  Cannell  i'.  need  not  produce  the  records  of  the  com- 

Curtis,  2  Bing.  N.  C.  228,  234 ;  Rex  v.  pany    to   show   his   election.      Cabot   v. 

Vercist,  3  Campb.  4.32 ;  Rex  i-.  Howard,  Given,  45  Maine,  144.] 

1  M.  Sc  Rob.  187;   McGahey  i-.  Alston,  2  6  Sebree  v.  Dorr,  'J  Wheat.  558,  503; 

M.  &  W.  200,  211 ;  Regina  v.  Vickery,  12  Hart  v.  Yunt,  1  Watts,  253.    [And  courts 


CHAP.  IV.] 


THE   BEST   EVIDENCE. 


107 


All  evidence  falling  short  of  this  in  its  degree  is  termed  secondary. 
The  question,  whether  evidence  is  primary  or  secondary,  has  ref- 
erence to  the  nature  of  the  case  in  the  abstract,  and  not  to  the 
peculiar  circumstances  under  which  the  party  in  the  particular 
cause  on  trial  may  be  placed.  It  is  a  distinction  of  law,  and  not 
of  fact ;  referring  only  to  the  quality,  and  not  to  the  strength  of 
the  proof.  Evidence  which  carries  on  its  face  no  indication  that 
better  remains  behind  is  not  secondary,  but  primary.  And 
though  all  information  must  be  traced  to  its  source,  if  possible, 
yet  if  there  are  several  distinct  sources  of  information  of  the  same 
fact,  it  is  not  ordinarily  necessary  to  show  that  they  have  all  been 
exhausted,  before  secondary  evidence  can  be  resorted  to.^ 


will  be  liberal  in  the  allowance "of  sec- 
ondary evidence  where  the  paper  to  be 
produced  is  out  of  the  jurisdiction.  Then 
any  evidence  of  its  contents  free  from 
suspicion  will  be  received.  Binney  v. 
Russell,  109  Mass.  55.  As  to  proof  that 
the  original  is  beyond  the  power  of  the 
party  offering  to  prove  its  contents,  see 
■post,  §§  558,  572-574.] 

1  Cutbush  c.  Gilbert,  4  S.  &  R.  555; 
United  States  v.  Gilbert,  2  Sumn.  19,  80, 
81 ;  Fhil.  &  Am.  on  Evid.  440.  441 ;  1 
Phil.  Evid.  421.  Whether  the  law  rec- 
ognizes any  degrees  in  the  various  kinds 
of  secondary  evidence,  and  requires  the 
part}'  offering  that  which  is  deemed  less 
certain  and  satisfactory  first  to  show 
that  nothing  better  is  in  his  power,  is  a 
question  which  is  not  yet  perfectly  set- 
tled. On  the  one  hand,  the  affirmative 
is  urged  as  an  equitable  extension  of  tiie 
principle  which  postpones  all  secondary 
evidence,  until  the  absence  of  the  pri- 
mary is  accounted  for ;  and  it  is  said 
that  the  same  reason  which  requires  the 
production  of  a  writing,  if  wi^iin  the 
power  of  a  party,  also  requires  that,  if 
the  writing  is  lost,  its  contents  shall  be 
proved  by  a  copy,  if  in  existence,  rather 
than  by  the  ;nemory  of  a  witness  who 
has  read  it ;  and  that  the  secondary 
proof  of  a  lost  deed  ought  to  be  mar- 
shalled into,  first,  the  counterpart ;  sec- 
ondly, a  copy  ;  thirdly,  the  abstract,  &c. ; 
and,  last  ot  all,  the  memory  of  a  witness. 
Ludlam,  ex  clem.  Hunt,  Loffl,  362.  On 
the  other  hand,  it  is  said  that  this  argu- 
ment for  the  extension  of  the  rule  con- 
founds all  distinction  between  the  weight 
of  evidence  and  its  legal  admissibility ; 
that  the  rule  is  founded  upon  the  nature 
of  the  evidence  offered,  and  not  upon  its 
strength  or  weakness  ;  and  that,  to  carry 
it  to  the  length  of  establishing  degrees 


in  secondary  evidence,  as  fixed  rules  ol 
law,  would  often  tend  to  the  subversion 
of  justice,  and  always  be  productive  of 
inconvenience.  If,  for  example,  proof 
of  the  existence  of  an  abstract  of  a  deed 
will  exclude  oral  evidence  of  its  con- 
tents, this  proof  may  be  withheld  by 
the  adverse  party  until  the  moment  of 
trial,  and  the  other  side  be  defeated,  or 
the  cause  be  greatly  delayed ;  and  the 
same  mischief  may  be  repeated,  through 
all  the  different  degrees  of  the  evidence. 
It  is  therefore  insisted,  that  the  rule  of 
exclusion  ought  to  be  restricted  to  such 
evidence  only,  as,  upon  its  face,  discloses 
the  existence  of  better  proof ;  and  that, 
where  the  evidence  is  not  of  this  na- 
ture, it  is  to  be  received,  notwithstand- 
ing it  may  be  shown  from  other  sources 
that  the  party  might  have  offered  that 
which  was  more  satisfactory ;  leaving 
the  weight  of  the  evidence  to  be  judged 
of  by  the  jury,  under  all  the  circum- 
stances of  the  case.  See  4  Monthly  Law 
Mag.  265-279.  Among  the  cases  cited 
in  support  of  the  affirmative  side  of  the 
question,  there  is  no  one  in  which  tliis 
particular  point  appears  to  have  been 
expressly  adjudged,  though  in  several  of 
them  —  as  in  Sir  E.  Seymour's  case,  10 
Mod.  8;  Villiers  v.  Villiers,  2  Atk.  71; 
Rowlandson  v.  Wainwright,  1  Nev.&Per. 
8 ;  and  others  —  it  has  been  passingly  ad- 
verted to  as  a  famiUar  doctrine  of  the 
law.  On  the  otlier  hand,  the  existence 
of  any  degrees  in  secondary  evidence 
was  doubted  by  Patterson,  J.,  in  Row- 
landson V.  Wainwright ;  tacitly  denied 
by  the  same  judge,  in  Covle  v.  Cole,  6 
C.  &  P.  359,  and  by  Parke'  J.,  in  Rex  v. 
Fursey,  C.  &  P.  81 ;  and  by  the  court,  in 
Rex  1-.  Hunt  et  «/.,  3  B.  &  Aid.  506;  and 
expressly  denied  by  Parke,  J.,  in  Browa 
V.  Woodman,  6  C.  &  P.  206.    See  also 


108 


LAW   OF  EVIDENCE. 


[part  n. 


§  85.   Substitution  of  oral  for  written  evidence.      The  cases  which 
most  frequently  call  for  the  application  of  the  rule  now  under 


Hall  V.  Ball,  3  Scott,  N.  R.  577.  And  in 
the  more  recent  case  of  Doe  d.  Gilbert  v. 
Koss,  in  the  Exchequer,  where  proper 
notice  to  produce  an  original  document 
had  been  given  without  success,  it  was 
held  that  tlie  party  giving  the  notice 
was  not  afterwards  restricted  as  to  the 
nature  of  tlie  secondary  evidence  he 
would  produce  of  the  contents  of  the 
document ;  and,  therefore,  having  offered 
an  attested  copy  of  the  deed  in  that  case, 
which  was  inadmissible  in  itself  for  want 
of  a  stamp,  it  was  lield  that  it  was  com- 
petent for  him  to  abandon  that  mode  of 
proof,  and  to  resort  to  parol  testimony, 
tliere  being  no  degrees  in  secondary  evi- 
dence ;  for  when  once  tlie  original  is  ac- 
counted for,  any  secondary  evidence 
wliatever  may  be  resorted  to  by  the 
party  seeking  to  use  tlie  same.  See  Doe 
V.  Ross,  8  Dowl.  389 ;  s.  c.  7  M.  &  W. 
102 ;  Doe  v.  Jack,  1  Allen,  476,  483.  The 
American  doctrine,  as  deduced  from  va- 
rious autiiorities,  seems  to  be  this,  —  that 
if,  from  the  nature  of  the  case  itself,  it  is 
manifest  that  a  more  satisfactory  kind 
of  secondary  evidence  exists,  the  party 
will  be  required  to  produce  it ;  but  that, 
where  the  nature  of  the  case  does  not  of 
itself  disclose  tlie  existence  of  such  bet- 
ter evidence,  tlie  objector  must  not  only 
prove  its  existence,  but  also  must  prove 
that  it  was  known  to  the  other  party  in 
season  to  have  been  produced  at  the 
trial.  Thus,  wliere  the  record  of  a  con- 
viction was  destroyed,  oral  proof  of  its 
existence  was  rejected,  because  the  law 
required  a  transcript  to  be  sent  to  the 
Court  of  Exchequer,  which  was  better 
evidence.  Hilts  v.  Colvin,  14  Johns.  182. 
So,  a  grant  of  letters  of  administration 
was  presumed  after  proof,  from  the  rec- 
ords of  various  courts,  of  the  administra- 
tor's recognition  there,  and  liis  acts  in  that 
capacity.  Battles  v.  Hollcy,  6  Greenl. 
145.  And  where  the  record  books  were 
burnt  and  mutilated,  or  lost,  the  clerk's 
docket  and  the  journals  of  the  judges 
have  been  deemed  the  next  best  evidence 
of  the  contents  of  the  record.  Cook  v. 
Wood,  1  McCord,  139 ;  Lyons  v.  Gregory, 
3  Hen.  &,  Munf.  237  ;  Lowry  v.  Cady,  4 
Vermont,  504  ;  Doe  i;.  Greenlee,  3  Hawks. 
281.  In  all  these  and  the  like  cases,  the 
nature  of  the  fact  to  be  proved  plainly 
discloses  the  existence  of  some  evidence 
in  writing,  of  an  official  character,  more 
satisfactory  than  mere  oral  proof ;  and 
therefore  the  production  of  such  evidence 
is   demanded.     Such,  also,  is   the   view 


taken  by  Ch.  B.  Gilbert.  See  Gilb.  Evid. 
by  Lofft,  p.  5.     See  also  Collins  v.  Maule, 

8  C.  &  P.  502;  Everingham  v.  Roundell, 
2  M.  &  Rob.  188;  Harvey  v.  Thomas, 
10  Watts,  63.  [In  Harvey  v.  Thorpe,  28 
Ala.  2.50,  the  American  rule  is  preferred 
to  the  English.  In  Carpenter  i'.  Davies, 
10  Ind.  129,  it  is  held  that  tliere  are  no 
degrees  in  the  same  class  of  secondary 
evidence.]  But  where  there  is  no  ground 
for  legal  presumption  that  better  second- 
ary evidence  exists,  any  proof  is  received 
which  is  not  inadmissible  by  other  rules 
of  law ;  unless  the  objecting  party  can 
show  that  better  evidence  was  previously 
known  to  the  other,  and  might  have  been 
produced  ;  thus  subjecting  him,  by  posi- 
tive proof,  to  the  same  imputation  of 
fraud  which  the  law  itself  presumes, 
when  primary  evidence  is  withheld. 
Thus,  where  a  notarial  copy  was  called 
for,  as  the  best  evidence  of  the  contents 
of  a  lost  note,  the  court  held,  that  it  was 
sufficient  for  tlie  party  to  jirove  the  note 
by  the  best  evidence  actually  in  his  power ; 
and  that  to  require  a  notarial  copy  would 
be  to  demand  that  of  the  existence  of 
which  there  was  no  evidence,  and  which 
the  law  would  not  presume  was  in  the 
power  of  the  party,  it  not  being  neces- 
sary that  a  promissory  note  should  be  pro- 
tested.    Renner  v.  the  Bank  of  Columbia, 

9  Wheat.  582,  587  ;  Denn  c.  McAllister,  2 
Halst.  46,  53;  United  States  v.  Britton,  2 
Mason,  404, 408.  But  where  it  was  proved 
that  a  copy  existed  of  a  note,  he  was  held 
bound  to  prove  it  by  the  copy.  2  Mason, 
408.  But  if  the  party  has"  voluntarily 
destroyed  the  instrument,  he  is  not  al- 
lowed to  prove  its  contents  by  secondary 
evidence,  until  he  has  repelled  every 
inference  of  a  fraudulent  design  in  its 
destruction.  Blade  v.  Noland,  12  Wend. 
178.  [See  also  ante,  §  37.  And  the  in- 
troduction of  weaker  secondary  evidence, 
when  better  might  be  produced,  gives 
rise  to  unfavorable  inferences.  Mor- 
decai  v.  Beal,  8  Porter  (Ala.),  529 ;  Bailey 
V.  McMeckle,  9  Cal.  430 ;  Schoenberger 
V.  Hackman,  37  Pa.  St.  887.]  Where 
the  subscribing  witness  to  a  deed  is  dead, 
and  his  handwriting  cannot  be  proved, 
the  next  best  evidence  is  proof  of  the 
liandwriting  of  the  grantor,  and  this 
is  therefore  required.  Clark  v.  Court- 
ney, 5  Peters,  319.  But  in  Nfiv  York, 
proof  of  the  handwriting  of  the  witness 
himself  is  next  demanded.  Jackson  v. 
Waldron,  13  Wend.  178.  See  infra,  §  576. 
But  where  a  deed  was  lost,  the  party 


CHAP.  IV.] 


THE  BEST   E^TDENCE. 


109 


consideration,  are  those  wliicli  relate  to  the  substitution  of  oral 
for  written  evidence  ;  and  they  may  be  arranged  into  three  classes : 
including  in  the  first  class  those  instruments  which  the  law  re- 
quires should  be  in  writing ;  in  the  second,  those  contracts 
which  the  parties  have  put  in  writing ;  and  in  the  third,  all 
other  writings,  the  existence  of  which  is  disputed,  and  which  are 
material  to  the  issue. 

§  86.  Where  the  la-w  requires  written  evidence.  In  the  first  p.ace, 
oral  evidence  cannot  be  substituted  for  any  instrument  which  the 
law  requires  to  be  in  ivriting  ;  such  as  records,  public  documents, 
official  examinations,  deeds  of  convej'ance  of  lands,  wills  other 
than  nuncupative,  promises  to  pay  the  debt  of  another,  and  other 
writings  mentioned  in  the  Statute  of  Frauds.  In  all  these  cases, 
the  law  having  required  that  the  evidence  of  the  transaction 
should  be  in  writing,  no  other  proof  can  be  substituted  for  that, 
as  long  as  the  writing  exists,  and  is  in  the  power  of  the  party. 


claiming  under  it  was  not  held  bound  to 
call  the  subscribing  witnesses,  unless  it 
could  be  shown  that  he  previousl}^  knew 
who  they  were.  Jackson  y.  Vail,  7  Wend. 
125.  So  it  was  ruled  by  Lord  Kenyon, 
in  Keeling  v.  Ball,  Peake's  Evid.  App. 
Ixxviii.  In  Gillies  v.  Smither,  2  Stark. 
528,  this  point  does  not  seem  to  have 
been  considered ;  but  the  case  turned 
on  the  state  of  the  pleadings,  and  the 
want  of  any  proof  whatever  that  the 
bond  in  question  was  ever  executed  by 
the  intestate.  [This  rule  of  evidence 
does  not  require  proof  of  the  loss  of  the 
primary  evidence  beyond  possibility  of 
mistake,  but  only  to  a  moral  certainty. 
Mr.  Justice  Campbell  in  United  States 
V.  Sutter,  21  How.  (U.  S.)  170,  175.  If  by 
"  moral  certainty  "  is  meant,  as  in  crim- 
inal cases,  "  beyond  reasonable  doubt," 
this  case  is  more  strict  than  the  general 
current  of  tlie  authorities.  Reasonable 
proof,  stronger  or  weaker,  according  to 
the  circumstances,  seems  to  be  all  that  is 
required.  Boulden  v.  Massie,  7  Wheat. 
(U.  S.)  122;  Minor  v.  Tillotson,  7  Pet. 
( U.  S. )  99 ;  Wing  v.  Abbott,  28  Maine, 
367;  Waller  v.  School  Dist.,  22  Conn. 
826;  Carr  v.  Minner,  42  111.  179.  See 
also  post,  §  558.  In  Comet  v.  Williams, 
20  Wall.  (U.  S.)  226,  the  court,  after 
saying  that  they  do  not  adopt  the  Eng- 
lish rule,  that  there  are  no  degrees  in 
secondary  evidence,  observe  that  the 
rule  of  exclusion  or  admission  must  be 
so  applied  as  to  promote  the  ends  of 
justice,   and  guard  against  fraud,  sur- 


prise, and  imposition.  The  idea  is  sug- 
gested in  a  case  in  New  York  (Hubbard 
V.  Russell,  24  Barb.  404),  that  two  letters 
written  at  the  same  time  to  the  same 
person,  one  being  the  exact  counterpart 
of  the  other,  may  both  be  regarded  as 
originals  ;  and  wliere  one  is  sent,  and  the 
other  retained,  that  the  latter  may  be 
given  in  evidence  without  notice  to  pro- 
duce the  other.  That  might  be  true  if 
the  fact  to  be  proved  were  merely  the 
writing  of  the  letters.  But  where,  as  is 
commonly  the  case,  the  point  to  be 
reached  is  the  sending  or  receipt  of  the 
letter  to  or  by  another,  a  letter  not  sent 
could  only  be  used  as  a  copy.  And  if 
the  letter  sent  was  in  fact  a  copy  of  that 
retained,  it  would,  by  the  fact  of  being 
used  for  that  purpose,  become  the  origi- 
nal. In  Durkee  v.  Vermont  Central 
Railway,  29  Vt.  127,  it  is  held,  that, 
where  a  telegraphic  communication  is 
relied  on  to  establish  a  contract,  it  must 
be  proved  as  other  writings  are,  by  the 
production  of  the  original.  If  that  is  lost, 
it  may  be  proved  by  a  copy  if  there  is 
one,  and,  if  there  is  not,  by  oral  testimony 
respecting  it.  The  original,  where  the 
person  to  whom  it  is  sent  takes  the  risk 
of  its  transmission,  or  is  the  employer  of 
the  telegraph,  is  the  message  delivered 
to  the  operator.  But  where  the  person 
sending  the  message  takes  the  initiative, 
so  that  the  telegraph  is  to  be  regarded 
as  his  agent,  the  original  is  the  mes- 
sage actually  delivered  at  the  end  of  the 
line.] 


LIO 


LAW   OF  EVIDENCE. 


[PABT  n. 


And  where  oaths  are  required  to  be  taken  in  open  court,  where  a 
record  of  the  oath  is  made,  or  before  a  particular  officer,  whose 
duty  it  is  to  certify  it ;  or  where  an  appointment  to  an  additional 
office  is  required  to  be  made  and  certified  on  the  back  of  the 
party's  former  commission,  —  the  written  evidence  must  be  pro- 
duced.^  Even  the  admission  of  the  fact  by  a  party,  unless 
Bolemnly  made,  as  a  substitute  for  other  proof,^  does  not  super- 
sede direct  proof  of  matter  of  record  by  which  it  is  sought  to 
affect  him ;  for  the  record,  being  produced,  may  be  found  irregu- 
lar and  void,  and  the  party  might  be  mistaken. ^  Where,  how- 
ever, the  record  or  document  appointed  by  law  is  not  part  of  the 
fact  to  be  proved,  but  is  merely  a  collateral  or  subsequent  memo- 
rial of  the  fact,  such  as  the  registry  of  marriages  and  births,  and 
the  like,  it  has  not  this  exclusive  character,  but  any  other  legal 
proof  is  admitted.* 

§  87.  Where  parties  have  agreed  in  writing.  In  the  Second  place, 
oral  proof  cannot  be  substituted  for  the  written  evidence  of  any 
contract  which  the  parties  have  put  in  writing.  Here,  the  written 
instrument  may  be  regarded,  in  some  measure,  as  the  ultimate 
fact  to  be  proved,  especially  in  the  cases  of  negotiable  securities ; 
and,  in  all  cases  of  written  contracts,  the  writing  is  tacitly  agreed 
upon,  by  the  parties  themselves,  as  the  only  repository  and  the 
appropriate  evidence  of  their  agreement.     The  written  contract 


1  Rex  r.  Hube,Peake's  case,  132;  Bas- 
Bett  r.  Marshall,  9  Mass.  312;  Tripp  i;. 
Garey,  7  Greenl.  266 ;  2  Stark.  Evid.  570, 
671 ;  Dole  v.  Allen,  4  Greenl.  527.  [In 
an  action  against  the  selectmen  of  a  town 
for  refusing  to  receive  the  vote  of  the 
plaintiff,  an  inhabitant  of  the  town,  parol 
evidence  that  the  plaintifTs  name  was  on 
the  voting  list  used  at  tlie  election  is  inad- 
missible without  first  giving  notice  to  pro- 
duce the  list,  such  list  being  an  official 
document.  Harris  v.  Whitcomb,  4  Grav, 
433.] 

^  See  supra,  §  27;  infra,  §§  169,  170, 
186,  204,  205.  [Flemming  v.  Clark,  12 
Allen,  Mass.  191 ;  Michcner  v.  Lloyd,  16 
N.J.  Eq.  38.] 

8  Scott  I'.  Clare,  3  Campb.  2.36 ;  Jenner 
V.  Jolliffc,  0  Johns.  <)  ;  Welland  Canal  Co. 
V.  Hathaway,  8  Wend.  480;  1  Leach,  Cr. 
C.  349;  2  Id.  025,  635.  [The  minutes  of 
a  clerk  of  a  parish,  never  having  been 
extended  on  the  record,  may  be  proved 
by  parol,  after  proof  of  their  loss. 
Wallace   v.   Townsend,   109  Mass.   2G3. 


Where  the  records  of  deeds  are  destroyed 
by  fire,  as  was  the  case  in  Chicago,  the 
inde.x  book  in  which  the  deed  is  de- 
scribed, and  the  fact  stated  that  it  is 
recorded,  is  good  evidence  of  the  fact  of 
record;  and  the  notice  which  the  record 
gave  to  all  the  world  is  not  destroyed  by 
the  destruction  of  the  record.  Alvis  v. 
Morrison,  Sup.  Ct.  111.  Ch.  L.  N.  Sept. 
12,  1874.     And  see  also  )>ost,  §  500.] 

*  Commonwealth  i-.  Norcross,  9  JMass. 
402;  Ellis  v.  Ellis,  11  Mass.  92;  Owings 
V. Wyant.  3  H.  &  McH.  393 ;  2  Stark.  Evid. 
571 ;  Rex  v.  Allison,  R.  &.  R.  109;  Head 
V.  Passer,  Pcake's  Cas.  231.  [So,  where 
a  grantee,  at  the  time  of  receiving  a  deed 
of  land,  agreed  by  parol  that  the  grantor 
might  continue  to  exercise  a  right  of  way 
over  the  land,  the  evidence  was  held  ad- 
missible, not  because  a  right  of  way  can 
be  created  by  a  parol  grant,  but  to  show 
that  the  grantor's  subsequent  possession 
of  such  easement  commenced  under  a 
claim  of  right.  Ashley  v.  Ashley,  4  Gray, 
199.] 


CHAP.  IV.]  THE  BEST  EVIDENCE.  Ill 

is  not  collatercal,  but  is  of  the  very  essence  of  the  transaction.^ 
If,  for  example,  an  action  is  brought  for  use  and  occupation  of 
real  estate,  and  it  appears  by  the  plaintiff's  own  showing  that 
there  was  a  written  contract  of  tenancy,  he  must  produce  it,  or 
account  for  its  absence  ;  though,  if  he  were  to  make  out  a  prima 
facie  case,  without  any  appearance  of  a  written  contract,  the 
burden  of  producing  it,  or  at  least  of  proving  its  existence,  would 
be  devolved  on  the  defendant.^  But  if  the  fact  of  the  occupa- 
tion of  land  is  alone  in  issue  without  respect  to  the  terms  of  the 
tenancy,  this  fact  may  be  proved  by  any  competent  oral  testi- 
mony, such  as  payment  of  rent,  or  declarations  of  the  tenant, 
notwithstanding  it  appears  that  the  occupancy  was  under  an 
agreement  in  writing ;  for  here  the  wi'iting  is  only  collateral  to 
the  fact  in  question.^  The  same  rule  applies  to  every  other 
species  of  written  contract.  Thus,  where,  in  a  suit  for  the  price 
of  labor  performed,  it  appears  that  the  work  was  commenced 
under  an  agreement  in  writing,  the  agreement  must  be  produced ; 
and  even  if  the  claim  be  for  extra  work,  the  plaintiff  must  still 
produce  the  written  agreement ;  for  it  may  furnish  evidence,  not 
only  that  the  work  was  over  and  beyond  the  original  contract,  but 
also  of  the  rate  at  which  it  was  to  be  paid  for.  So,  in  an  indict- 
ment for  feloniously  setting  fire  to  a  house,  to  defraud  the  in- 
surers, the  policy  itself  is  the  appropriate  evidence  of  the  fact  of 
insurance,  and  must  be  produced.^    And  the  recorded  resolution 

1  The  principles  on  which  a  writing  is  sentences,  judgments,  edicts,  ordinances, 

deemed  part  of  the  essence  of  any  trans-  and  other  matters  which   either  confer 

action,  and  consequently  the  best  or  pri-  title   or  have    the   force    of  law.      The 

mary  proof  of  it,  are  thus  explained  by  writing  preserves,  unchanged,  the  mat- 

Domat :  "The  force  of  written  proof  con-  ters  intrusted  to  it,  and   expresses  the 

sists  in  this,  —  men  agree  to  preserve  by  intention   of  the   parties   by   their   own 

writing  the  remembrance  of  past  events,  testimony.     Tiie  truth  of  written  acts  is 

of  which  they  wish  to  create  a  memorial,  established  by  the  acts  themselves  ;  tliat 

either  with  a'  view  of  laying  down  a  rule  is,  by  the  inspection  of   the   originals." 

fortheirown  guidance,  orinordertohave,  See   Domat's    Civil    Law,  liv.   3,  tit.  6, 

in  the  instrument,  a  lasting  proof  of  the  §   2,  as    translated    in   7   Monthly   Law 

truth  of  what  is  written.     Tluis  contracts  Mag.  p.  73. 

are  written,  in  order  to  preserve  the  me-  ^  Brewer  v.  Palmer,  3  Esp.  213,  con- 

morial  of  what  the   contracting   parties  firmed  in  Ramsbottom?;.  Tunbridge,  2M. 

have  prescribed  for  each  other  to  do.  and  &  S.  434  ;  Kex  v.  Kawden,  8  B.  &  C.  708 ; 

to  make  for  themselves  a  fi.xed  and  im-  Strother  v.  Barr,  5  Ring.  136,  per  Parke, 

mutable  law,  as  to  what  has  been  agreed  J.  [Magnay  v.  Knight,  1  M.  &  Gr.  1)41]. 
on.     So,  testaments  are  written,  in  order  ^  Bex  v.  Inhabitants  of  Holy  Trinity, 

to  preserve  the  remembrance  of  what  tlie  7  B.  &  C.  611;  Poe  v.  Harvey,  8  Bing. 

party  who  has  a  riglit  to  dispose  of  his  239,  241  ;  Spiers  v.  Willison,  4  Cranch, 

property  has  ordained  concerning  it,  and  398;  Dennet  v.  Crocker,  8  Greenl.  239, 

thereby  lay  down  a  rule  for  tlie  guidance  244. 

of  his  heirs  and  legatees.     On  the  same  *  Rex  v.  Doran,  1  Esp.  127;  Rex  v. 

principle    are   reduced  into  writing  all  Gilson,  Russ.  &  Ky.  138. 


112  LAW  OF  EVIDENCE.  [PAET  H. 

of  a  charitable  society,  under  which  the  plaintiff  earned  the  salary 
sued  for,  was  on  the  same  principle  held  indispensably  necessary 
to  be  produced.^  The  fact  that  in  such  cases  the  writing  is  in 
the  possession  of  the  adverse  party  does  not  change  its  character : 
it  is  still  the  primary  evidence  of  the  contract ;  and  its  absence 
must  be  accounted  for  by  notice  to  the  other  party  to  produce  it, 
or  in  some  other  legal  mode,  before  secondary  evidence  of  its 
contents  can  be  received.^ 

§  88.  "Where  existence  of  writing  is  disputed.  In  the  third  place, 
oral  evidence  cannot  be  substituted  for  any  writing,  the  existence 
of  ivhich  is  disputed,  and  which  is  material  either  to  the  issue 
letiveen  the  parties,  or  to  the  credit  of  witnesses,  and  is  not  merely 
the  memorandum  of  some  other  fact.  For,  by  applpng  the  rule 
to  such  cases,  the  court  acquires  a  knowledge  of  the  whole  con- 
tents of  the  instrument,  which  may  have  a  different  effect  fi'om 
the  statement  of  a  part.^  "  I  have  always,"  said  Lord  Tenterden, 
"  acted  most  strictly  on  the  rule,  that  what  is  in  writing  shall 
only  be  proved  by  the  writing  itself.  My  experience  has  taught 
me  the  extreme  danger  of  relying  on  the  recollection  of  witnesses, 
however  honest,  as  to  the  contents  of  written  instruments;  they 
may  be  so  easily  mistaken,  that  I  think  the  purposes  of  justice 
require  the  strict  enforcement  of  the  rule."'^  Thus,  it  is  not 
allowed,  on  cross-examination,  in  the  statement  of  a  question  to 
a  witness,  to  represent  the  contents  of  a  letter,  and  to  ask  the 
witness  whether  he  wrote  a  letter  to  any  person  with  such  con- 
tents, or  contents  to  the  like  effect,  without  having  first  shown 
the  letter  to  the  -^vitness,  and  having  asked  him  whether  he  wrote 
that  letter;  because,  if  it  were  otherwise,  the  cross-examining 
counsel  might  put  the  court  in  possession  of  only  a  part  of  the 
contents  of  a  paper,  when  a  knowledge  of  the  whole  was  essential 
to  a  right  judgment  in  the  cause.  If  the  witness  acknowledges 
the  writing  of  the  letter,  yet  he  cannot  be  questioned  as  to  its 
contents,  but  the  letter  itself  must  be  read.^    And  if  a  witness 

1  Whitford  v.  Tutin  et  ah,  10  Bing.  395 ;  evidence  after  tlie  other  side  has  proved 
Molton  V.  Harris,  2  Esp.  549.  its  contents.    Doon  v.  Donaper,  113  Mass. 

2  See  further,  Kex  v.  Rawden,  8  B.  &     151.] 

C.  708 ;  Sebree  v.  Dorr,  9  Wheat.  658 ;  »  go   held   by  all  the   jud^jcs   in  the 

Bullock  V.  Koon,9  Cowen,30;  Mather  i».  Queen's  case,  2  Brod.  &  Bing.  287.     See 

Goddard,  7  Conn.  304 ;  Rank  v.  Sliewey,  also  Phil.  &  Am.  on  Evid.  441 ;  1  Phil. 

4  Watts,  218;  Northrup    v.  Jackson,   13  Evid.  422. 

Wend.  86 ;  Vina!  v.  Bnrrill,  16  Pick.  401,  «  Vincent  v.  Cole,  1  M.  &  M.  258. 

407,  408 ;  Lanau/e  v.  Palmer,  1  M.  &  M.  »  The  Queen's  case,  2  B.  &  B.  287 ; 

81.     [A  paper  that  one  party  has  refused  infra,  §  463. 
to  produce  on  notice,  he  cannot  put  iu 


CHAP.  IV.]  THE  BEST  EVIDENCE.  113 

being  examined  in  a  foreign  country,  upon  interrogatories  sent 
out  with  a  commission  for  that  purpose,  should  in  one  of  his 
answers  state  the  contents  of  a  letter  which  is  not  produced,  that 
part  of  the  deposition  will  be  suppressed,  notwithstanding,  he 
being  out  of  the  jurisdiction,  there  maybe  no  means  of  compelling 
him  to  produce  the  letter.^ 

§  89.  Collateral  writings.  In  cases,  however,  where  the  written 
communication  or  agreement  between  the  parties  is  collateral  to 
the  question  in  issue,  it  need  not  be  produced;  as,  where  the 
writing  is  a  mere  proposal,  which  has  not  been  acted  upon ;  ^  or, 
where  a  written  memorandum  was  made  of  the  terms  of  the  con- 
tract, which  was  read  in  the  presence  of  the  parties,  but  never 
signed,  or  proposed  to  be  signed ;  ^  or,  where,  during  an  employ- 
ment under  a  written  contract,  a  separate  verbal  order  is  given ;  * 
or,  where  the  action  is  not  directly  upon  the  agreement,  for  non- 
performance of  it,  but  is  in  tort,  for  the  conversion  or  detention 
of  the  document  itself ;  ^  or,  where  the  action  is  for  the  plaintiff 's 
share  of  money  had  and  received  by  the  defendant,  under  a  written 
security  for  a  debt  due  to  them  both.^ 

§  90.  In  other  cases  admissible.  But  where  the  writing  does 
not  fall  within  either  of  the  three  classes  already  described,  there 
is  no  ground  for  its  excluding  oral  evidence.  As,  for  example,  if 
a  written  communication  be  accompanied  by  a  verbal  one,  to  the 
same  effect,  the  latter  may  be  received  as  independent  evidence, 
though  not  to  prove  the  contents  of  the  writing,  nor  as  a  sub- 
stitute for  it.  Thus,  also,  the  payment  of  money  may  be  proved 
by  oral  testimony,  though  a  receipt  be  taken  ; '''  in  trover,  a  verbal 
demand  of  the  goods  is  admissible,  though  a  demand  in  writing 
was  made  at  the  same  time  ;  ^  the  admission  of  indebtment  is 

1  Steinkeller  v.  Newton,  9  C.  &  P.  313.     v.  Holbrook,  13  Johns.  90  ;   McLean  v. 

2  Ingram  v.  Lea,  2  Campb.  521 ;  Rams-     Hertzog,  6  S.  &  R.  154. 

bottom  V.  Tunbridge,  2  M.  &  S.  4-34 ;  Ste-  6  Bayne    v.    Stone,   4    Esp.    13.     See 

phens  V.  Pinnev,  8  Taunt.  327;  Doe  v.  Tucker  v.   Welsh,    17   Mass.    165;    Mc- 

Cartwright,  .3   B.  &  A.   826;   Wilson  v.  Fadden    v.   Kingsbury,   11    Wend.   6(57; 

Bowie,  1  C.  &  P.  8 ;  Hawkins  v.  Warre,  3  Soutliwick   v.   Stephens,  10  Johns.  443. 

B.  &  C.  690.  [AVhere  a  writing   docs   not   purport  to 

3  Truwhitt  v.  Lambert,  10  Ad.  &  El.  contain  the  entire  contract  between  par- 
470.  ties,  additional  terms  may  be  shown  by 

4  Reid  V.  Battie,  M.  &  M.  413  [Parton  parol.  Webster  v.  Hodgkins,  5  Foster, 
V.  Cole,  6  Jur.  B.  C.  370].  (N.  H.)  128.] 

5  Jollevf.  Taylor,  1  Campb.  143;  Scott  ^  Rambert  i'.  Cowen,  3  Esp.  213;  Ja- 
V.  Jones,  8  Taunt.  805  ;  How  v.  Hall,  14  cob  v.  Lindsav,  1  East,  4G0;  Doe  v.  Cart- 
East,  274 ;  Bucher  v.  Jarratt,  3  B.  &  P.  wright,  3  B.  &  A.  326. 

143;  Whitehead  v.  Scott,  1  ^l.  &  Rob.  2  ;  8  gmith  v.  Young,  4  Campb.  439. 

Ross  V.  Bruce,  1  Day,  100 ;  The  People 
VOL.  I.  8 


114  LAW  OF  EVIDENCE.  [PAET  H. 

provable  by  oral  testimony,  though  a  written  promise  to  pay  was 
simultaneously  given,  if  the  paper  be  inadmissible  for  want  of  a 
stamp. 1  Such,  also,  is  the  case  of  the  examination  and  confession 
of  a  prisoner,  taken  down  in  writing  by  the  magistrate,  but  not 
signed  and  certified  pursuant  to  the  statutes.^  And  any  writing 
inadmissible  for  the  want  of  a  stamp^  or  other  irregularity,  may  stUl 
be  used  by  the  witness  who  wrote  it,  or  was  present  at  the  time, 
as  a  memorandum  to  refresh  his  own  memory,  from  which  alone 
he  is  supposed  to  testify,  independently  of  the  written  paper.^ 
In  like  manner,  in  prosecutions  for  political  offences,  such  as 
treason,  conspiracy,  and  sedition,  the  inscription  on  flags  and 
banners  paraded  in  public,  and  the  contents  of  resolutions  read 
at  a  public  meeting,  may  be  proved  as  of  the  nature  of  speeches, 
by  oral  testimony  ;  *  and  in  the  case  of  printed  papers^  all  the 
impressions  are  regarded  as  originals,  and  are  evidence  against 
the  person  who  adopts  the  printing  by  taking  away  copies.^ 

§  91.  Exceptions.  —  Public  books.  The  rule  rejecting  secondary 
evidence  is  subject  to  some  exceptions  ;  grounded  either  on  public 
convenience,  or  on  the  nature  of  the  facts  to  be  proved.  Thus, 
the  contents  of  any  record  of  a  judicial  court,  and  of  entries  in 
any  other  public  books  or  registers,  may  be  proved  by  an  examined 
copy.  This  exception  extends  to  all  records  and  entries  of  a 
public  nature,  in  books  required  by  law  to  be  kept ;  and  is  ad- 
mitted because  of  the  inconvenience  to  the  public  which  the 
removal  of  such  documents  might  occasion,  especially  if  they 
were  wanted  in  two  places  at  the  same  time  ;  and  also,  because 
of  the  public  character  of  the  facts  they  contain,  and  the  conse 
quent  facility  of  detection  of  any  fraud  or  error  in  the  copy.® 

1  Singleton  v.  Barrett,  2  Cr.  &  Jer.  368.  in  chancery,  wliere  tlie  party  is  indicted 

2  Lanibe's  case,  2  Leach,  625;  Rex  v.  for  perjury  therein  ;  for  there  tlie  original 
Chappei,  1  M.  &  Rob.  oOo,  39(5,  n. ;  2  i'iiil.  must  be  produced,  in  order  to  iik-iitify  tbe 
Evid.  Hi,  82  ;  Roscoo's  Crim.  Evid.  40, 47.  party,  by  proof  of  liis  Jiandwritinj^.     Tiie 

'^  Dalison  i\  Stark,  4  Esp.  163;  Jacob  same  reason  applies   to  depositions  and 

f.  Lind.sa}-,  1  East,  460;  Maugham  i\  Hub-  affidavits.     Rex  r.  Howard,!  M.  &  Rob. 

bard,  8  B.  &  C.  14;  Rex  v.  Tarrant,  G  C.  180.     [A  registry  copy  of  a  deeil  of  land 

&  P.  182;  Rex  v.  I'ressly,  Id.  183;  Lay-  is  not  admissible  in  evidence  against  the 

er's  case.  10  Howell's  St.  Tr.  223;  infra,  grantee,  wititout  notice  to  liim  to  i)roduce 

§§  228,  430.  tlie  original,  tlie  original  being  presumed 

*  Rex  V.  Hnr.t,  3  B.  &  A.  566;  Sheri-  to  be  in  liis  possession.     Commonwealth 

dan  &  Kirwan's  case,  31  Howell's  St.  Tr.  v.  Emery,  2  Gray,  80.  i'  Wliere  tlie  origi- 

672.  nals  are  not  presumed  to  be  in  tlie  pos- 

^  Rex  V.  AVatson,  2   Stark.  129,  130.  session  of  eitlier  party  to  the  suit,  office 

[See  also  7»o.'^^  §  '.(7,  n.]  copies  of  deeds  areadmissible.  Blanciiard 

e  Bull.  N.  P.  220;  1  Stark.  Evid.  189,  v.  Young,  11  Cush.  :!45.     See  also  Palmer 

191.    [See  also />os^§§  484, 509.)   But  this  v.    Stevens,    lb.    147.      As   to   notice  to 

exception  does  not  extend  to  an  answer  produce,  see  post,  §  560.] 


U 


CHAP.  lY.] 


THE   BEST   EVIDENCE. 


115 


§  92.  "Written  appointments  to  offices.  For  the  same  reasons,  and 
from  the  strong  presumption  arising,  from  the  undisturbed  exer- 
cise of  a  public  office,  that  the  appointment  to  it  is  valid,  it  is  not, 
in  general,  necessary  to  prove  the  written  appointments  of  public 
officers.  All  who  are  proved  to  have  acted  as  such  are  presumed 
to  have  been  duly  appointed  to  the  office,  until  the  contrary  ap- 
pears ;  ^  and  it  is  not  material  how  the  question  arises,  whether  in 
a  civil  or  criminal  case,  nor  whether  the  officer  is  or  is  not  a  party 
to  the  record ;  ^  unless,  being  plaintiff,  he  unnecessarily  avers  his 
title  to  the  office,  or  the  mode  of  his  appointment ;  in  which  case, 
as  has  been  already  shown,  the  proof  must  support  the  entire 
allegation.^  These  and  similar  exceptions  are  also  admitted,  as 
not  being  witliin  the  reason  of  the  rule,  which  calls  for  primary 
evidence  ;  namely,  the  presumption  of  fraud,  arising  from  its  non- 
production. 

§  93.  Voluminous  facts.  A  further  relaxation  of  the  rule  has 
been  admitted,  where  the  e"\ddence  is  the  result  of  voluminous 
facts,  or  of  the  inspection  of  many  books  and  papers,  the  exami- 
nation of  which  could  not  conveniently  take  place  in  court.* 


^  An  officer  de  facto  is  one  who  exer- 
cises an  office  under  color  of  right,  by  vir- 
tue of  some  appointment  or  election,  or 
of  such  acquiescence  of  tlie  public  as  will 
authorize  the  presumption,  at  least,  of  a 
colorable  appointment  or  election;  being 
distinguished,  on  the  one  hand,  from  a 
mere  usurper  of  office,  and  on  the  other 
from  an  officer  dejiire.  AVilcox  v.  Smith, 
5  Wend.  231 ;  Plymouth  v.  Painter,  17 
Conn.  585 ;  Burke  v.  Elliott,  4  Ired.  355. 
Proof  that  a  person  is  reported  to  be  and 
has  acted  as  a  public  officer  is  prima  facie 
evidence,  between  third  persons,  of  his 
official  character.  McCoy  i'.  Curtice,  9 
"Wend.  17.  And  to  this  end  evidence  is 
admissible,  not  only  to  show  that  he  exer- 
cised the  office  before  or  at  the  period  in 
question,  but  also,  limited  to  a  reasonable 
time,  that  he  exercised  it  afterwards. 
Doe  V.  Young,  8  Ad.  &  El.  n.  s.  63.  And 
see  supra,  §  83.  [Cabot  v.  Given,  45 
Maine,  44.] 

2  Rex  V.  Gordon,  2  Leach's  C.  C.  581 ; 
Berryman  ?;.  Wise,  4  T.  K.  366 ;  McGa- 
hey  V.  Alston,  2  ]\Iees.  &  Wels.  206,  211  ; 
Eadford  v.  Mcintosh,  3  T.  R.  632 ;  Cross 
V.  Kaye,  6  T.  R.  663 ;  James  v.  Brawn,  5 
B.  &  A.  243;  Rex  v.  Jones,  2  Campb. 
131 ;  Rex  v.  Verelst,  3  Campb.  432. 
A  commissioner  appointed  to  take  affi- 
davits is  a  public  officer,  within  this  ex- 
ception.   Rex  V.  Howard,  1  M.  &  Rob. 


187.  See  supra,  §  83;  United  States  v. 
Reyburn,  6  Peters,  352,  367;  Regina 
V.  is^ewton,  1  Car.  &  Kir.  369;  Doe  v. 
Barnes,  10  Jur.  520;  8  Ad.  &  El.  n.  s. 
1037  ;  Plumer  v.  Briscoe,  12  Jur.  351 ;  11 
Ad.  &  El.  N.  8.  46 ;  Doe  i'.  Young,  8  Ad. 
&  El.  N.  s.  63. 

3  Supra,  §  56 ;  Cannell  v.  Curtis,  2 
Bing.  N.  C.  228 ;  Moises  v.  Thornton,  8  T. 
R.  303 ;  The  People  v.  Hopson,  1  Denio, 
574.  In  an  action  by  the  sheriff  for  his 
poundage,  proof  that  he  lias  acted  as 
sheriff  has  been  held  sufficient  prima  facie 
evidence  that  he  is  so,  without  proof  of 
his  appointment.  Bunbury  v.  Matthews, 
1  Car.  &  Kir.  380.  But  in  New  York  it 
has  been  held  otherwise.  The  People  v. 
Hopson,  supra. 

i  Phil.  &  Am.  on  Evid.  445 ;  1  Phil. 
Evid.  433,  434.  The  rules  of  pleading 
have,  for  a  similar  reason,  been  made  to 
yield  to  public  convenience  in  the  admin- 
istration of  justice ;  and  a  general  allega- 
tion is  ordinarily  allowed,  "  when  the 
matters  to  be  pleaded  tend  to  infiniteness 
and  multiplicity,  whereby  the  rolls  shall 
be  incumbered  with  the  length  thereof." 
Mints  V.  Bethil,  Cro.  Eliz.  749;  Stephens 
on  Pleading,  359,  360.  Courts  of  equity 
admit  the  same  exception  in  regard  to 
parties  to  bills,  where  they  are  numer- 
ous, on  the  like  grounds  of  convenience. 
Story  on  Eq.  PI.  94,  95,  et  seq. 


116 


LAW   OF  EVIDENCE. 


[PAUT  n. 


Thus,  if  there  be  one  invariable  mode  in  which  bills  of  exchange 
have  been  drawn  between  particular  parties,  this  may  be  proved 
by  the  testimony  of  a  witness  conversant  with  their  habit  of 
business,  and  speaking  generally  of  the  fact,  without  producing 
the  bills.  But  if  the  mode  of  dealing  has  not  been  uniform,  the 
case  does  not  fall  within  this  exception,  but  is  governed  by  the 
rule  requiring  the  production  of  the  writings.^  So,  also,  a  wit- 
ness who  has  inspected  the  accounts  of  the  parties,  though  he 
may  not  give  evidence  of  their  particular  contents,  may  be  allowed 
to  speak  to  the  general  balance,  without  producing  the  accounts.^ 
And  where  the  question  is  upon  the  solvency  of  a  party  at  a  par- 
ticular time,  the  general  result  of  an  examination  of  his  books 
and  securities  may  be  stated  in  like  manner.^ 

§  94.  Inscriptions.  Under  this  head  may  be  mentioned  the  case 
of  inscriptions  on  walls  and  fixed  tables,  mural  monuments,  grave- 
stones, surveyors''  marks  on  boundary  trees,  &c.,  which,  as  they 
cannot  conveniently  be  produced  in  court,  may  be  proved  by 
secondary  evidence.* 

§  95.  Preliminary  inquiries.  Another  exception  is  made,  in  the 
examination  of  a  witness  on  the  voir  dire,  and  in  preliminary  in- 
quiries of  the  same  nature.  If,  upon  such  examination,  the  wit- 
ness discloses  the  existence  of  a  written  instrument  affecting  his 


^  Spencer  v.  Billing,  3  Campb.  310. 

2  Roberts  v.  Doxon,  Peakc's  Cas.  83. 
But  not  as  to  particular  facts  appearing 
on  the  books,  or  dctlucible  from  the 
entries.  Dupuy  v.  Truman,  2  Y.  &  C. 
341.  [And  he  may  refer  to  other  ac- 
counts to  refresli  lils  recollection,  on 
beiug  required  to  give  the  items  of  a 
long  account.  Alleglieny  Ins.  Co.  v. 
Hanlon,  Suj).  Ct.  Ta.  Leg.  Int.  1874,  p. 
372;  post,  §  4.3G.1 

8  Meyer  v.  Sefton,  2  Stark.  274.  [So 
negatively  it  may  be  shown  that  such 
books  do  not  contain  (certain  entries,  for 
the  purpose  of  showing  that  A  never  lent 
money  to  a  bank,  the  books  being  out  of 
the  jurisdiction.  Burton  i'.  Driggs,  U.  S. 
Sup.  Ct.  1875,  7  Leg.  Gaz.  1.  But  a  wit- 
ness cannot  be  allowed  to  state  his  im- 
pression of  tlie  friendly  or  unfriendly  re- 
lation of  y)arties  to  each  other  from  the 
perusal  of  letters  which  passed  between 
them,  but  which  have  been  destroyed. 
Topliam  V.  McGregor,  1  C.  &  K.  320. 
When  books  and  documents  introiliiced 
in  evidence  at  the  trial  are  multifarious 
and  voluminous,  and  of  such  a  character 
as  to  render  it  difficult  for  the  jury  to  com- 


prehend material  facts,  without  schedules 
containing  abstracts  thereof,  it  is  within 
the  discretion  of  the  presiding  judge  to 
admit  such  schedules,  verified  by  the 
testimony  of  the  person  by  whom  they 
were  prepared,  allowing  the  adverse  party 
an  opportunity  to  examine  them  before 
tiie  case  is  submitted  to  the  jury.  Boston 
&  W.  R.  R.  Corp.  V.  Dana,  1  Gray,  8-3,  104. 
See  also  Holbrook  v.  Jackson,  7  Cush. 
136.1 

*  Doe  V.  Coyle,  6  C.  &  P.  300 ;  Rex  v. 
Fursev,  Id.  81 ;  [Mortimer  v.  McCallan, 
6  M.  &  W.  08,  72  ;  Bruce  v.  Nicolopolo, 
11  Exch.  129.  So  if  the  instruments  of 
evidence  are  in  a  foreign  jurisdiction. 
Crispin  v.  l)oglioni,32  L.  J.  P.  &  M.  129; 
Boyle  V.  Wiseman,  10  Ex.  047].  But,  if 
they  can  conveniently  be  brought  into 
court,  their  actual  jiroduction  is  required. 
Thus,  where  it  was  pro])osed  to  show  the 
contents  of  a  printed  notice,  hung  up  in 
the  office  of  the  party,  who  was  a  carrier, 
parol  evidence  of  its  contents  was  re- 
jected, it  not  being  affixed  to  tlie  free- 
liold.  Jones  v.  Tarlton,  1  D.  P.  C.  n  s. 
G25. 


CHAP,  rv.]  THE  BEST  EVIDENCE.  117 

competency,  lie  may  also  be  interrogated  as  to  its  contents.  To 
a  case  of  this  kind,  the  general  rule  requiring  the  production  of 
the  instrument,  or  notice  to  produce  it,  does  not  apply ;  for  the 
objecting  party  may  have  been  ignorant  of  its  existence,  until  it 
was  disclosed  by  the  witness ;  nor  could  he  be  supposed  to  know 
that  such  a  witness  would  be  produced.  So,  for  the  like  reason, 
if  the  witness,  on  the  voir  dire,  admits  any  other  fact  going  to 
render  him  incompetent,  the  effect  of  which  has  been  subsequently 
removed  by  a  written  document,  or  even  a  record,  he  may  speak 
to  the  contents  of  such  writing,  without  producing  it ;  the  rule 
being  that  where  the  objection  arises  on  the  voir  dire,  it  may  be 
removed  on  the  voir  dire.^  If,  however,  the  witness  produces 
the  writing,  it  must  be  read,  being  the  best  evidence.^ 

§  96.  Admissions.  It  may  be  proper,  in  this  place,  to  consider 
the  question,  whether  a  verbal  admission  of  the  contents  of  a  ivrit- 
ing,  by  the  party  himself,  will  supersede  the  necessity  of  giving 
notice  to  produce  it ;  or,  in  other  words,  whether  such  admission, 
being  made  against  the  party's  own  interest,  can  be  used,  as 
primary  evidence  of  the  contents  of  the  writing,  against  him  and 
those  claiming  under  him.  Upon  this  question,  there  appears 
some  discrepancy  in  the  authorities  at  Msi  Prius.^  But  it  is  to 
be  observed,  that  there  is  a  material  difference  between  proving 
the  execution  of  an  attested  instrument,  when  produced,  and 
proving  the  party's  admission  that  by  a  written  instrument, 
which  is  not  produced,  a  certain  act  was  done.  In  the  former 
case,  the  law  is  well  settled,  as  we  shall  hereafter  show,  that 
when  an  attested  instrument  is  in  court,  and  its  execution  is  to 
be  proved  against  a  hostile  party,  an  admission  on  his  part,  unless 
made  with  a  view  to  the  trial  of  that  cause,  is  not  sufficient. 
This  rule  is  founded  on  reasons  peculiar  to  the  class  of  cases  to 

1  Phil.  iSb  Am.  on  Evid.  149 ;  1  Phil,  the  rule,  and  not  within  the  exception, 
Evid.  154,  155;  Butchers'  Co.  v.  Jones,  1  and  that  the  writing  which  restores  the 
Esp.  160;  Botham  v.  Swingler,  Id.  164;  competency  must  be  produced.  See  ace. 
Hex  V.  Gisburn,  15  East,  57  ;  Carlisle  v.  Goodhay  v.  Hendry,  1  M.  &  M.  319,  per 
Eady,  1  C.  &  P.  234,  n. ;  Miller  v.  Mar-  Best,  C.  J.,  and  Id.  .321,  n.,  per  Tindall, 
iners'  Church,  7  Greenl.  51;  Sewell  v.  C.J.  But  see  Carlisle  r.  Eady,  1  C.  &  P. 
Stubbs,  1  C.  &  P.  73.  234,  per  Parke,  J. ;    Wandless   v.  Caw- 

2  Butler  V.  Carver,  2  Stark.  434.  A  thorne,  1  M.  &  M.  321,  n.,  per  Parke,  J., 
distinction  has  been  taken  between  cases,  contra.  See  1  Phil.  Evid.  154,  155. 
where  the  competency  appears  from  the  ^  phil.  &  Am.  on  Evid.  363,  364 ;  1 
examination  of  the  witness,  and  those  Phil.  Evid.  346,  347.  See  the  Monthly 
where  it  is  already  apparent  from  the  rec-  Law  Magazine,  vol.  v.  p.  175-187,  where 
ord,  without  his  examination  ;  and  it  has  this  point  is  distinctly  treated. 

been  held,  that  the  latter  case  falls  within 


118  LAW   OF  EVIDENCE.  [PART  H. 

•which  it  is  applied.  A  distinction  is  also  to  be  observed  between 
a  confessio  juris  and  a  confessiofacti.  If  the  admission  is  of  the 
former  nature,  it  falls  within  the  rule  already  considered,  and  is 
not  received ;  ^  for  the  party  may  not  know  the  legal  effect  of  the 
instrument,  and  his  admission  of  its  nature  and  effect  may  be  ex- 
ceedingly erroneous.  But  where  the  existence,  and  not  the  formal 
execution,  of  a  writing  is  the  subject  of  inquiry,  or  where  the 
writing  is  collateral  to  the  principal  facts,  and  it  is  on  these  facts 
that  the  claim  is  founded,  the  better  opinion  seems  to  be  t]iat 
the  confession  of  the  party,  precisely  identified,  is  admissible  as 
primary  evidence  of  the  facts  recited  in  the  writing ;  though  it  is 
less  satisfactory  than  the  writing  itself.^  Very  great  weight 
ought  not  to  be  attached  to  evidence  of  what  a  party  has  been 
supposed  to  have  said ;  as  it  frequently  happens,  not  only  that 
the  witness  has  misunderstood  what  the  party  said,  but  that,  by 
unintentionally  altering  a  few  of  the  expressions  really  used,  he 
gives  an  effect  to  the  statement  completely  at  variance  with 
what  the  party  actually  did  say.^  Upon  this  distinction  the  ad- 
judged cases  seem  chiefly  to  turn.  Thus,  where,  in  an  action  by 
the  assignees  of  a  bankrupt  for  infringing  a  patent-right  standing 
in  his  name,  the  defendant  proposed  to  prove  the  oral  declaration 
of  the  bankrupt  that  by  certain  deeds  an  interest  in  the  patent- 
right  had  been  conveyed  by  him  to  a  stranger,  the  evidence  was 
properly  rejected ;  for  it  involved  an  opinion  of  the  party  upon 
the  legal  effect  of  the  deeds.*  On  the  other  hand,  it  has  been 
held  that  the  fact  of  the  tenancy  of  an  estate,  or  that  one  person, 
at  a  certain  time,  occupied  it  as  the  tenant  of  a  certain  other  per- 
son, may  be  proved  by  oral  testimony.     But  if  the  terms  of  the 

1  Supra,  §  86;  Moore  v.  Hitchcock,  4  Smith  v.  Palmer,  6  Cush.  515  [Slatterie 

Wend.  2(i2,  298,  299;  Paine  !).  Tucker,  8  v.  Pooley,  6  Mees.   &   Wels.   (iG4.     See 

Siiepl.  138.     [In  an  action  on  a  written  infra,  §  205]. 

contract,  wliich  is  put  in  evidence,  the  ^  Per  Parke,  J.,  in  Earle  v.  Pickcn,  5 

plaintiHcannot introduce  tlic oral declara-  C.  &  P.  542,  n.     See  also  1  Stark.  Evid. 

tions  of  tlie  defendant  as  to  ids  supposed  35,  36;  2  Stark.  Evid.  17  ;  in/'ra,  §§  200, 

liability;  since,  if  tlie  declaratiotis  varied  203;  Ph.&  Am.  on  Evid.  391,392;  IPhil. 

the  terms  of  the  written  contract,  they  Evid.  372. 

were  not  competent  testimony  ;  if  tliey  *  Bloxam  v.  Elsee,  1  C.  «&  P.  558  ;  8.  c. 

did  not,  they  were  immaterial.     Goodell  Ry.  &  M.  187.     See,  to  the  same  point, 

V.  Smith,  9   Cush.  592.      Evidence  that  Hex  v.  Hube,  Peake's  Cas.  132 ;  Tiiomas 

the  party  souj^lit  to  be  charged  handed  v.  Ansley,  6  Esp.  80;    Scott  v.  Clare,  3 

the  original  to  a  third  party  to  be  copied,  Campb.  236;  Hex  v.  Careinion,  8  East, 

is  sufficient  proof  of  the  genuineness  of  77;   Harrison  v.  More,  Phil.  &  Am.  on 


the   original.     Kreise  v.  Neason,  66  Pa.     Evid.  305,  n. ;  1  Phjl-  Evid.  347,  n.  ;  JRex 
'   .  2o.';.     See  alio  )>ost,  §  558,  n.|  v.  Inhal  -----  _  _    . 

2  Howard  v.  Smith,  3  Scott,  N.  R.  574 ;     A.  688. 


St.  2o.';.     See  alio  )>ost,  §  558,  n.]  v.  Inhabitants  of  Castle  Morton,  3  B.  & 

t,  N.  " 


CHAP.  IV.] 


THE  BEST  EVIDENCE. 


119 


contract  are  in  controversy,  and  they  are  contained  in  a  jvriting, 
the  instrument  itself  mnst  be  produced,^ 

§  97.  Admissions.  There  is  a  class  of  cases,  which  seem  to  be 
exceptions  to  this  rule,  and  to  favor  the  doctrine  that  oral  dec- 
larations of  a  party  to  an  instrument,  as  to  its  contents  or  effect, 
may  be  shown  as  a  substitute  for  direct  proof  by  the  writing 
itself.  But  these  cases  stand  on  a  different  principle,  namely, 
that  where  the  admission  involves  the  material  fact  in  pais,  as  well 
as  a  matter  of  law,  the  latter  shall  not  operate  to  exclude  evidence 
of  the  fact  from  the  jury.  It  is  merely  placed  in  the  same  pre- 
dicament with  mixed  questions  of  law  and  fact,  wliich  are  always 
left  to  the  jury,  under  the  advice  and  instructions  of  the  court.^ 
Thus,  where  the  plaintiff,  in  ejectment,  had  verbally  declared 
that  he  had  "  sold  the  lease,"  under  wliich  he  claimed  title,  to  a 
stranger,  evidence  of  this  declaration  was  admitted  against  him.3 
It  involved  the  fact  of  the  making  of  an  instrument  called  an 
assignment  of  the  lease,  and  of  the  delivery  of  it  to  the  assignee, 
as  well  as  the  legal  effect  of  the  writing.  So,  also,  similar  proof 
has  been  received,  that  the  party  was  "  possessed  of  a  lease- 
hold;""^ "  held  a  note,"  ^  "  had  dissolved  a  partnership,"  which 
was  created  by  deed ;  ^  and  that  the  indorser  of  a  dishonored 
bill  of  exchange  admitted,  that  it  had  been  "  duly  protested."  ^ 


1  Brewer  v.  Palmer,  3  Esp.  213  ;  Rex 
V.  Inhabitants  of  Holy  Trinity,  7  B.  &  C. 
611 ;  s.  c.  1  Man.  &  Ily.  444;  Strother  v. 
Barr,  5  Bing.  136 ;  Ramsbottom  v.  Tun- 
bridge,  2  M.  &  S.  434.  [Notwithstanding 
the  decision  in  Slatterie  v.  Pooley,  6  M. 
&  W.  664,  that  the  admission  of  a  party 
is  always  receivable  against  him,  although 
it  relate  to  the  contents  of  a  deed,  or  other 
written  instrument,  and  even  though  its 
contents  be  directly  in  issue  in  the  case, 
the  proposition  seems  not  to  have  met 
with  universal  acquiescence.  The  Irish 
courts  dissent  from  it.  Lawless  v.  Queale, 
8  Ir.  Law,  382 ;  Lord  Gosford  v.  Robb, 
Id.  217;  Parsons  v.  Purcell,  12  Id.  90. 
And  the  New  York  courts  adopt  a  dif- 
ferent view.  Jeuner  v.  Joliffe,  6  Johns. 
9;  Hasbrouck  v.  Baker,  10  Id.  248; 
Welland  Canal  v.  Hatliaway,  8  Wendell, 
480.  And  there  is  no  restriction  to  in- 
quiries, upon  cross-examination, in  regard 
to  writings,  and  facts  evidenced  by  writ- 
ings; and  the  rule  extends  to  the  party 
who  is  a  witness  in  support  of  his  own 
case ;  and  lie  may  be  asked,  with  a  view 
to  discredit  him,  if  he  did  not  in  a  similar 
Buit  in  an  inferior  court  give  evidence 


before  the  jury  in  support  of  his  defence, 
and  whether  a  verdict  was  not  rendered 
against  him,  without  producing  any  record 
in  the  action.  Henman  v.  Lester,  12  C. 
B.  N.  s.  776 ;  s.  c.  9  Jur.  n.  s.  601.  And 
the  doctrine  of  Slatterie  v.  Pooley  is 
approved  in  Massaclmsetts  in  recent 
cases.  Loomis  v.  Wadliams,  8  Gray, 
657  ;  Smith  v.  Palmer,  6  Cush.  520.  And 
see  also  post,  §§  202,  203 ;  Taylor,  Ev. 
§§  381-384.] 

2  United  States  v.  Battiste,  2  Sumn. 
240.  And  see  Newton  v.  Belcher,  12  Ad. 
&  El.  N.  8.  921. 

3  Doe  d.  Lowden  v.  Watson,  2  Stark. 
230. 

4  Digby  V.  Steele,  3  Campb.  115. 
8  Sewell  V.  Stubbs,  1  C.  &  P.  73. 

6  Doe  d.  Waithman  v.  Miles,  1  Stark. 
181 ;  4  Campb.  375. 

7  Gibbons  V.  Coggon,  2  Campb.  188. 
Whether  an  admission  of  the  counterfeit 
character  of  a  bank-note,  which  the  party 
had  passed,  is  sufficient  evidence  of  the 
fact,  without  producing  the  note,  quare; 
and  see  Commonwealth  v.  Bigelow,  8 
Met.  235. 


120 


LAW   OF   EVIDENCE. 


[PAUT  n. 


What  the  party  has  stated  in  his  answer  in  Chancery  is  admissi- 
ble on  other  grounds ;  namely,  that  it  is  a  solemn  declaration 
under  oath  in  a  judicial  proceeding,  and  that  the  legal  effect  of 
the  instrument  is  stated  under  the  advice  of  counsel  learned  in 
the  law.  So,  also,  where  both  the  existence  and  the  legal  effect 
of  one  deed  are  recited  in  another,  the  solemnity  of  the  act,  and 
the  usual  aid  of  counsel,  take  the  case  out  of  the  reason  of  the 
general  rule,  and  justify  the  admission  of  such  recital,  as  satis- 
factory evidence  of  the  legal  effect  of  the  instrument,  as  well  as 
conclusive  proof  of  its  execution.^  There  are  other  cases  wbich 
may  seem,  at  first  view,  to  constitute  exceptions  to  the  present 
rule,  but  in  wliich  the  declarations  of  the  party  were  admissible, 
either  as  contemporaneous  with  the  act  done,  and  expounding  its 
character,  thus  being  part  of  the  res  gestce ;  or,  as  establishing  a 
collateral  fact,  independent  of  the  written  instrument.  Of  this 
sort  was  the  declaration  of  a  bankrupt,  upon  his  return  to  his 
house,  that  he  had  been  absent  in  order  to  avoid  a  writ  issued 
against  him ;  ^  the  oral  acknowledgment  of  a  debt  for  which  an 
unstamped  note  had  been  given ;  ^  and  the  oral  admission  of  the 
party,  that  he  was  in  fact  a  member  of  a  society  created  by  deed, 
and  had  done  certain  acts  in  that  capacity.* 


1  Ash  more  v.  Hardy,  7  C.  &  P.  501  ; 
Digbv  V.  Steele,  3  Canipb.  115  ;  Burleigh 
V.  Stibbs,  5  T.  R.  465;  West  v.  Davis,  7 
East,  363;  Paul  v.  Meek,  2  Y.  &  J.  116; 
Breton  v.  Cope,  Peake's  Cas.  30.  [As  to 
answers  in  Chancery,  see  infra,  §  260,  and 
8  Grcenl.  Evid.  §§  280,  290  ;'  as  to  recitals 
in  deeds,  see  suprn,  §  23,  n.J 

2  Newman  v.  Stretch,  1  M.  &  M.  338. 

3  Singleton  r.  Barrett,  2  C.  &  J.  .368. 

*  Alderson  c.  Clay.  1  Stark.  405 ; 
Harvey  v.  Kay,  9  B.  &  C.  .356.  [Whether 
the  entries  in  a  broker's  books,  or  the 
bought  and  sold  notes,  are  tiie  primary 
evidence  of  a  contract,  seems  to  be  a 
matter  of  difli-rence  of  opinion.  Sieve- 
wriffht  V.  Arcliibald,  17  Q.  B.  115,  124, 
holds  the  former  to  be  the  primary  evi- 


dence ;  while  Durell  r.  Evans,  1  H.  &  C. 
174,  s.  c.  31  L.  J.  Ex.  337,  holds  tliat  the 
latter  are.  See  also  Taylor,  Ev.  §§  390- 
393.  A  duplicate  of  a  notarial  instrument 
made  out  from  the  original  in  the  notarial 
book  is  equivalent  to  the  original.  Gera- 
lopulo  V.  Wider,  10  C.  B.  712.  Deeds  exe- 
cuted in  duplicate  by  all  the  parties  are 
all  originals.  Colling  v.  Trcmeck,  G  B.  & 
C.  398 ;  Brown  i;.  Woodman,  G  C.  &  P. 
20G.  Where,  however,  each  part  is  exe- 
cuted by  only  one  of  the  parties,  each  is 
the  best  evidence  against  the  party  exe- 
cuting it,  and  secondary  evidence  of  the 
contents  of  the  other  part.  Roe  i*.  Davis, 
7  East,  363 ;  Houghton  v.  Koenig,  18  C. 
B.  235;  Mann  v.  Godbold,  3  Bing.  292. 
See  also  ante,  §  91.] 


*...    


CHAP,  v.]  HEABSAY.  121 


CHAPTER  V. 

OF  HEARSAY. 

§  98.  Direct  and  hearsay  evidence.  The  first  degree  of  morai 
evidence,  and  that  which  is  most  satisfactory  to  the  mind,  is 
afforded  by  our  own  senses  ;  this  being  direct  evidence  of  the 
highest  nature.  Where  this  cannot  be  had,  as  is  generally  the 
case  in  the  proof  of  facts  by  oral  testimony,  the  law  requires 
the  next  best  evidence  ;  namely,  the  testimony  of  those  who  can 
speak  from  their  own  personal  knowledge.  It  is  not  requisite 
that  the  witness  should  have  personal  knowledge  of  the  main  fact 
in  controversy  ;  for  this  may  not  be  provable  by  direct  testimony, 
but  only  by  inference  from  other  facts  shown  to  exist.  But  it  is 
requisite,  that,  whatever  facts  the  witness  may  speak  to,  he  should 
be  confined  to  those  lying  in  his  own  knowledge,  whether  they  be 
things  said  or  done,  and  should  not  testify  from  information 
given  by  others,  however  worthy  of  credit  they  may  be.  For  it 
is  found  indispensable,  as  a  test  of  truth  and  to  the  proper 
administration  of  justice,  that  every  living  witness  should,  if  pos- 
sible, be  subjected  to  the  ordeal  of  a  cross-examination,  that  it 
may  appear  what  were  his  powers  of  perception,  his  opportunities 
for  observation,  his  attentiveness  in  observing,  the  strength  of  his 
recollection,  and  his  disposition  to  speak  the  truth.  But  testi- 
mony from  the  relation  of  third  persons,  even  where  the  inform- 
ant is  known,  cannot  be  subjected  to  this  test ;  nor  is  it  often 
possible  to  ascertain  through  whom,  or  how  many  persons,  the 
narrative  has  been  transmitted  from  the  original  witness  of  the 
fact.  It  is  this  which  constitutes  that  sort  of  second-hand  evi- 
dence termed  "  hearsay." 

§  99.  Hearsay.  The  term  hearsay  is  used  with  reference  to 
that  which  is  written,  as  well  as  to  that  which  is  spoken  ;  and,  in 
its  leo-al  sense,  it  denotes  that  kind  of  evidence  which  does  not 
derive  its  value  solely  from  the  credit  to  be  given  to  the  witness 
himself,  but  rests  also,  in  part,  on  the  veracity  and  competency 
of  some  other  person.^     Hearsay  evidence,  as  thus  described,  is 

1  1  Phil.  Evid.  185  [Sussex  Peerage  case,  11  CI.  &  Fin.  85,  113;  Stapylton  v. 
Glough,  22  Eng.  Law  &  Eq.  276]. 


122  LAW   OF  EVrDENCE.  [PART  H. 

uniformly  held  incompetent  to  establish  any  sj^ecijic  fact,  which, 
in  its  nature,  is  susceptible  of  being  proved  by  witnesses  who 
can  speak  from  their  own  knowledge.  That  this  species  of  testi- 
mony supposes  something  better,  which  might  be  adduced  in  the 
particular  case,  is  not  the  sole  ground  of  its  exclusion.  Its  ex- 
trinsic weakness,  its  incompetency  to  satisfy  the  mind  as  to  the 
existence  of  the  fact,  and  the  frauds  which  may  be  practised 
under  its  cover,  combine  to  support  the  rule  that  hearsay  evi- 
dence is  totally  inadmissible.^ 

§  100.  Original  and  hearsay  evidence  distinguished.  Before  we  pro- 
ceed an}  farther  in  the  discussion  of  this  branch  of  evidence,  it 
will  be  proper  to  distinguish  more  clearly  between  hearsay  evidence 
and  that  which  is  deemed  original.  For  it  does  not  follow,  because 
the  writing  or  words  in  question  are  those  of  a  third  person,  not 
under  oath,  that  therefore  they  are  to  be  considered  as  hearsay. 
On  the  contrary,  it  happens,  in  many  cases,  that  the  very  fact  in 
controversy  is,  whether  such  things  were  Avritten  or  spoken,  and 
not  whether  they  were  true ;  and,  in  other  cases,  such  language 
or  statements,  whether  written  or  spoken,  may  be  the  natural  or 
inseparable  concomitants  of  the  principal  fact  in  controversy .^ 
In  such  cases,  it  is  obvious  that  the  writings  or  words  are  not 
within  the  meaning  of  hearsay,  but  are  original  and  independent 
facts,  admissible  in  proof  of  the  issue. 

§  101.  Reputation,  statements  as  facts.  Thus,  where  the  ques- 
tion is,  whether  the  .party  acted  prudently,  wisely,  or  in  good 
faith,  the  information  on  which  he  acted,  whether  true  or  false, 
is  original  and  material  evidence.  This  is  often  illustrated 
in  actions  for  malicious  prosecution ;  ^  and  also  in  cases  of 
agency  and  of  trusts.  So,  also,  letters  and  conversation  addressed 
to  a  person,  whose  sanity  is  the  fact  in  question,  being  con- 
nected in  evidence  with  some  act  done  by  him,  are  original  evi- 
dence to  show  whether  he  was  insane  or  not.*     The  replies  given 

1  Per  Marshall,  C.  J.,  in  Mima  Queen  this  head,  it  has  been  held  that  where 
V.  Hepburn,  7  Cranch,  290,  2'J-3,  2%;  one  claimed  to  have  procured  a  pistol  to 
Davis  ('.  Wood,  1  Wheat.  •>,  8;  Rex  v.  defend  himself  ajjainst  the  attack  of 
Eriswell,  3  T.  K.  707.  [Evidence  upon  another,  upon  the  ground  of  certain  infor- 
preliminary  questions  with  reference  to  niation  received  from  others,  such  infor- 
tiieadmis.sibility  or  exclusion  of  evidence,  mation  becomes  an  original  fact,  proper 
being  addressed  to  the  court,  is  not  gov-  to  be  proved  or  disproved  in  the  case, 
erned  by  the  rides  applicable  to  testimony  People  v.  Shea,  8  Cal.  538. 

addressed  to  tiie  jury,  and  hearsay  may  »  Taylor  v.  Willans,  2  B.  &  Ad.  845. 

be   admitted.     Uriggs  v.   Hyatt,  2  Abb.  So,  to  reduce  the  damages,  in  an  actioa 

Pr.  (N.  Y.)  44'.».]  for  libel.     Colman  y.  South  wick,  9  Johns. 

2  Bartlelt  r.  Delprat,  4  Mass.  708  ;  Du  45. 

Bost  V.  Beresford,  2  Campb.  511.    Under         *  Wheeler  v.  Alderson,  3  Hagg.  EccL 


CHAP,  v.] 


HEARSAY. 


123 


to  inquiries  made  at  the  residence  of  an  absent  witness,  or  at  the 
dwelling-house  of  a  bankrupt,  denying  that  he  was  at  home,  are 
also  original  evidence.^  In  these  and  the  like  cases,  it  is  not 
necessary  to  call  the  persons  to  whom  the  inquiries  were  addressed, 
since  their  testimony  could  add  nothing  to  the  credibility  of  the 
fact  of  the  denial,  which  is  the  only  fact  that  is  material.  This 
doctrine  applies  to  all  other  communications,  wherever  the  fact 
that  such  communication  was  made,  and  not  its  truth  or  falsity, 
is  the  point  in  controversy.^  Upon  the  same  principle,  it  is  con- 
sidered that  evidence  of  general  reputatitm,  reputed  ownership^ 
public  rumor,  general  notorieti/,  and  the  like,  though  composed  of 
the  speech  of  third  persons  not  under  oath,  is  original  evidence, 
and  not  hearsay ;  the  subject  of  inquiry  being  the  concurrence  of 
many  voices  to  the  same  fact.^ 


574,  608 ;  Wristht  v.  Tatham,  1  Ad.  &  El. 
8,  8;  s.  c.  7  Ad.  &  El.  313;  s.  c.  4  Bing. 
N.  C  489.  Whether  letters  addressed  to 
the  person  whose  sanity  is  in  issue  are 
admissible  evidence  to  prove  how  he  was 
treated  by  those  who  knew  him,  without 
showing  any  reply  on  his  part,  or  any 
other  act  xionnected  with  tlie  letters  or 
their  contents,  was  a  question  much  dis- 
cussed in  Wriglit  v.  Tatham.  Their  ad- 
missibility was  strongly  urged  as  evidence 
of  tlie  manner  in  which  the  person  was  in 
fact  treated  by  those  who  knew  him  ;  but 
it  was  replied,  tliat  the  effect  of  tlie  letters, 
alone  considered,  was  ouly  to  show  what 
were  the  opinions  of  the  writers ;  and  that 
mere  opinions,  upon  a  distinct  fact,  were 
in  general  inadmissible ;  but,  wlienever  ad- 
missible, they  must  be  proved,  like  otlier 
facts,  by  the  witness  himself  under  oath. 
The  letters  in  this  case  were  admitted  by 
Gurney,  B.,  who  hold  the  assizes ;  and 
upon  error  in  the  Exchequer  Chamber, 
four  of  the  learned  judges  deemed  them 
rightly  admitted,  and  three  thought  other- 
wise; but  the  point  was  not  decided,  a 
venire  de  novo  being  awarded  on  another 
ground.  See  2  Ad.  &  El.  3  ;  and  7  Ad  & 
El.  329.  Upon  the  new  trial  before  the 
same  judge,  the  letters  were  again  re- 
ceived ;  and  for  this  cause,  on  motion,  a 
new  trial  was  granted  by  Lord  Denman, 
C.  J.,  and  Littledale  and  Coleridge, 
Judges.  The  cause  was  then  again  tried 
before  Coleridge,  J.,  who  rejected  the 
letter;  and  exceptions  being  taken,  a 
writ  of  error  was  again  brought  in  the 
Exchequer  Chamber ;  where  the  six 
learned  judges  present,  being  divided 
equally  upon  the  question,  the  judgment 
of  the  King's  Bench  was  affirmed  (see  7 


Ad.  &  El.  313,  408),  and  this  judgment 
was  afterwards  affirmed  in  the  House  of 
Lords  (see  4  Bing.  N.  C.  489)  ;  a  large 
majority  of  the  learned  judges  concurring 
in  opinion,  that  letters  addressed  to  the 
party  were  not  admissible  in  evidence, 
unless  connected,  by  proof,  with  some 
act  of  his  own  in  regard  to  the  letters 
themselves,  or  their  contents. 

1  Crosby  y.  Percy,  1  Taunt.  364;  Mor- 
gan V.  Morgan,  9  Bing.  359;  Sumner  ?>. 
Williams,  5  Mass.  444 ;  Pelletreau  v. 
Jackson,  11  W^end.  110,  123,  124;  Key 
V.  Shaw,  8  Bing.  320;  Phelps  v.  Foot,  1 
Conn.  387. 

2  Whitehead  v.  Scott,  1  M.  &  Rob.  2 ; 
Shott  V.  Streatfield,  Id.  8 ;  1  Ph.  Evid.  188. 
[A  witness  may  state  wliat  was  said  by 
a  third  person  for  the  purpose  of  identi- 
fying a  date  or  occasion.  Hill  v.  North, 
34  Vt.  004.  Or  that  the  deceased  was 
inquiring  for  the  prisoner,  on  trial  for 
murder,  on  the  morning  of  the  day  of  the 
murder,  the  object  being  to  prove  the 
fact  of  the  inquiry.  Com.  v.  Alley,  Mass. 
1873,  Pamphlet,  p.  38.  And  see  post,  §  108.] 

3  Foulkes  V.  Sell  way,  3  Esp.  236 ;  Jones 
V.  Perry,  2  Esp.  482;  Rex  v.  Watson,  2 
Stark.  116;  Bull.  N.  P.  296,  297.  And 
see  Hard  v.  Brown,  3  Washb.  87.  Evi- 
dence of  reputed  ownership  is  seldom  ad- 
missible, except  in  cases  of  bankruptcy, 
by  virtue  of  the  statute  of  21  Jac.  1,  c.  19, 
§  11 ;  Gurr  v.  Button,  Holt's  N.  P.  Cas. 
327 ;  Oliver  v.  Bartlett,  1  Brod.  &  Bing. 
269.  Upon  the  question,  whetlier  a  libel- 
lous painting  was  made  to  represent  a  cer- 
tain individual.  Lord  Ellenborough  per- 
mitted the  declarations  of  the  spectators, 
while  looking  at  the  picture  in  the  exhi- 
bition-room, to  be  given  in  evidence.    Dtt 


124 


LAW   OF  EVIDENCE. 


[part  n. 


§  102.  Expressions  of  feeling.  Wherever  the  bodily  or  mental 
feelings  of  an  individual  are  material  to  be  proved,  the  usual 
expressions  of  such  feelings,  made  at  the  time  in  question,  are 
also  original  evidence.  If  they  were  the  natural  language  of  the 
affection,  whether  of  body  or  mind,  they  furnish  satisfactory  evi- 
dence, and  often  the  only  proof  of  its  existence.^  And  whether 
they  were  real  or  feigned  is  for  the  jury  to  determine.  Thus,  in 
actions  for  criminal  conversation,  it  being  material  to  ascertain 
upon  what  terms  the  husband  and  wife  lived  together  before  the 
seduction,  their  language  and  deportment  towards  each  other, 
their  correspondence  together,  and  their  conversations  and  cor- 
respondence with  tliird  persons,  are  original  evidence.^  But,  to 
guard  against  the  abuse  of  this  rule,  it  has  been  held,  that,  before 
the  letters  of  the  wife  can  be  received,  it  must  be  proved  that 
they  were  written  prior  to  any  misconduct  on  her  part,  and  when 
there  existed  no  ground  for  imputing  collusion.^  If  written  after 
an  attempt  of  the  defendant  to  accomplish  the  crime,  the  letters 
are  inadmissible.^     Nor  are  the  dates  of  the  wife's  letters  to  the 


Bost  V.  Beresford,  2  Campb.  512.  [The 
fact  that  a  debtor  was  reputed  insolvent 
at  the  time  of  an  alleged  fraudulent  pref- 
erence of  a  creditor,  is  competent  evi- 
dence tending  to  show  that  his  preferred 
creditor  had  reasonable  cause  to  believe 
liina  insolvent.  Lee  v.  Kilburn,  3  Gray, 
5'J4.  And  the  fact  that  he  was  in  good 
repute  as  to  property  may  likewise  be 
proved,  to  siiow  that  such  a  creditor  had 
not  reasonable  cause  to  believe  him  in- 
solvent. Bartlett  v.  Decreet,  4  Gray,  113 ; 
Iley  wood  v.  Keed,  Id.  674.  In  both  cases 
the  testimony  is  admissible  on  the  ground 
that  the  belief  of  men,  as  to  matters  of 
wiiich  they  have  not  ])ersonal  knowledge, 
is  reasonably  supposed  to  be  affected  by 
the  opinions  of  others  who  are  about 
them.  See  also  Carpenter  v.  Leonard,  3 
Allen,  32;  and  Whitcliery.  Sliuttuck,  Id. 
31"J.  So  in  an  action  for  fraudulently 
representing  another  wortiiy  of  credit, 
witnesses  conversant  with  the  facts  of 
the  transaction  in  question  may  be  al- 
lowed to  depose  that  at  the  time  they 
also  regarded  the  person  trustworthy. 
So  it  may  be  shown  that  sucii  person 
was  at  that  time  generally  so  reputed 
among  tradesmen  with  whom  he  dealt. 
Siiecn  »'.  Bumpstead,  10  Jur.  n.  s.  242; 
Exch.  Cham. ;  a.  c.  2  II.  &  C.  103.] 

1  [Sucii  evidence  may  be  classed  as 
natural  in  contradistinction  to  personal 
evidence.    Philips  v.  Ivelley,  2'i  Ala.  G2b. 


It  is  not,  however,  to  be  extended  beyond 
the  necessity  on  which  the  rule  is  founded. 
Any  thing  in  the  nature  of  narration  or 
statement  is  to  be  carefully  excluded, 
and  the  testimony  is  to  be  confined 
strictly  to  such  complaints,  exclamations, 
and  expressions  or  groans,  as  usually  and 
naturally  accompany  and  furnish  evi- 
dence of  a  present  existing  pain  or  malady, 
Bacon  v.  Charlton,  7  Cush.  581,  58tj; 
though  the  jilu'sician  may  state  what  the 
patient  said  in  describing  his  bodily  con- 
dition, if  said  under  such  circumstances 
as  free  it  from  all  suspicion  of  reference 
to  future  litigation,  and  give  it  tlie 
character  of  res  geshe,  and  it  constitute 
the  basis  of  his  opinion  of  the  cause  of 
the  malady,  not  including,  however,  the 
specific  cause  of  his  injury.  111.  Cen. 
K.  K.  Co.  V.  Sutton,  42  III.  438;  State  v. 
Davidson,  30  Vt.  377 ;  Burber  v.  Merriam, 
11  Allen  (Mass.),  322;  Denton  v.  State, 
1  Swan  (Tenn.),  297.1 

-  Trelawney  v.  Coleman,  2  Stark.  101 ; 
8.  c.  1  Barn.  &  Aid.  00;  Willis  v.  Bar- 
nard, 8  Bing.  376 ;  Elsam  v.  Faucett,  2 
Ksp.  502;  Winter  v.  Wroot,  1  M.  &,  Rob. 
404;  Gilchrist  i-.  Bale,  8  Watts,  355; 
Thompson  v.  Freeman,  Skin.  402. 

*  Edwards  i-.  Crock,  4  Ksp.  39;  Tre- 
lawney V.  Coleman,  1  Barn.  &  Aid.  90; 
1  riiil.  Evid.  100. 

*  Wilton  V.  Webster,  7  Car.  &  P.  198. 


CHAP.  Y.] 


HEAESAY. 


125 


husband  received  as  sufficient  evidence  of  the  time  when  they 
were  written,  in  order  to  rebut  a  charge  of  cruelty  on  his  part ; 
because  of  the  danger  of  collusion.^  So,  also,  the  representation 
by  a  sick  person  of  the  nature,  symptoms,  and  effects  of  the 
malady  under  which  he  is  laboring  at  the  time,  are  received  as 
original  evidence.  If  made  to  a  medical  attendant,  they  are  of 
greater  weight  as  evidence ;  but,  if  made  to  any  other  perse  n, 
they  are  not  on  that  account  rejected.^  In  prosecutions  for  rape, 
too,  where  the  party  injured  is  a  witness,  it  is  material  to  show 
that  she  made  complaint  of  the  injury  while  it  was  yet  recent. 
Proof  of  such  complaint,  therefore,  is  original  evidence  ;  but  the 
statement  of  details  and  circumstances  is  excluded,  it  being  no 
legal  proof  of  their  truth.^ 

§  103.  Relationship.  To  tliis  head  may  be  referred  much  of 
the  evidence  sometimes  termed  "  hearsay,"  which  is  admitted  in 
cases  of  pedigree.  The  principal  question,  in  these  cases,  is  that 
of  the  parentage  or  descent  of  the  individual ;  and,  in  order  to 
ascertain  this  fact,  it  is  material  to  know  how  he  was  acknowl- 
edged and  treated  by  those  who  were  interested  in  him,  or  sus- 
tained towards  him  any  relations  of  blood  or  affinity.  It  was  long 
unsettled,  whether  auj  and  what  kind  of  relation  must  have  sub- 
sisted between  the  person  speaking  and  the  person  whose  pedigree 
was  in  question ;  and  there  are  reported  cases  in  which  the  dec- 


1  Houliston  V.  Smyth,  2  Car.  &  P.  22; 
Trelawney  v.  Coleman,  1  Barn.  &  Aid.  90. 
[And  where  in  an  action  against  a  hus- 
band for  the  board  of  his  wife,  the  plain- 
tiff had  introduced  testimony  tending  to 
show  a  certain  state  of  mind  on  the  part 
of  the  wife,  her  declarations  to  third 
persons  on  that  subject,  expressive  of  her 
mental  feelings,  are  admissible  in  favor 
of  the  husband.  Jacobs  v.  Whitcomb,  10 
Cush.  255.] 

2  Aveson  v.  Lord  Kinnaird,  6  East, 
188 ;  1  Ph.  Evid.  191 ;  Grey  v.  Young,  4 
McCord,  38;  Gilchrist  v.  Bale,  8  Watts, 
355.  [Gray  v.  McLaughlin,  26  Iowa.  279. 
But  only  such  facts  as  show  the  character 
of  the  malady  and  its  cause ;  not  facts 
giving  no  aid  in  this  subject.  Morrissey 
V.  Ingham,  111  Mass.  63. 

So  the  exclamations  and  complaints 
of  a  person  annoyed  by  an  offensive 
smell  may  be  given  in  evidence.  Kearney 
V.  Farell,  28  Conn.  317.  In  an  action 
for  an  injury  caused  by  a  defect  in  the 
highway,  groans  or  exclamations  uttered 
by  the  plaintiff  at  any  time,  expressing 


present  pain  or  agony,  and  referring  by 
word  or  gesture  to  the  seat  of  the  pain, 
are  competent  testimony  for  the  plaintiff. 
Bacon  v.  Charlton,  7  Cush.  581,  586; 
State  V.  Howard,  32  Vt.  380;  Kent  v. 
Lincoln,  Id.  591.1 

3  1  East,  P.  C.  444,  445  ;  1  Hale,  P.  C. 
6-33;  1  Russell  on  Crimes,  565;  Rex  v. 
Clarke,  2  Stark.  241  ;  Laushlin  v.  The 
State,  18  Ohio,  99  [Reg.  v.  Megson,  9  C. 
&  P.  421.  Whether  a  complaint  of  rob- 
bery to  a  constable  is  admissible,  qncere. 
Reg.  I'.  Wink,  6  C.  &  P.  397;  Reg.  v. 
Osborne,  C.  &  M.  624;  Morrissey  v. 
Ingham,  HI  Mass.  63 ;  People  v.  McCrea, 
32  Cal.  98;  Jordan's  case,  25  Grat.  (Ya.) 
943;  post,  §  108].  In  a  pi-osecution  for 
conspiring  to  assemble  a  large  meeting, 
for  the  purpose  of  exciting  terror  in 
the  community,  the  complaints  of  ter- 
ror, made  by  persons  professing  to  be 
alarmed,  were  permitted  to  be  proved  by 
a  witness  who  heard  them,  without  call- 
ing the  persons  themselves.  Regina  v. 
Yincent  et  al.,  9  C.  &  P.  275.  See  Bacon 
V.  Charlton,  7  Cush.  581. 


12b 


LAW   OF  EVIDENCE. 


[PABT  n. 


larations  of  servants,  and  even  of  neighbors  and  friends,  have 
been  admitted.  But  it  is  now  settled,  that  the  law  resorts  to 
hearsay  evidence  in  cases  of  pedigree,  upon  the  ground  of  the 
interest  of  the  declarants  of  the  person  from  whom  the  descent  is 
made  out,  and  their  consequent  interest  in  knowing  the  connec- 
tions of  the  family.  The  rule  of  admission  is,  therefore,  restricted 
to  the  declarations  of  deceased  persons  who  were  related  by  blood 
or  marriage  to  the  person,  and,  therefore,  interested  in  the  suc- 
cession in  question.^  And  general  repute  in  the  family,  proved 
by  the  testimony  of  a  surviving  member  of  it,  has  been  considered 
as  falling  within  the  rule.^ 

§  104.  Birth,  death,  marriage.     The  term  pedigree,  however,  em- 


1  Vowles  V.  Young,  13  Ves.  140,  147 ; 
Goodriglit  V.  Moss,  Cowp.  591,  594,  as 
expounded  by  Lord  Eldon,  in  Whitclocke 
V.  Baker,  13  Ves.  514 ;  Johnson  v.  Law- 
son,  2  Bing.  86 ;  Monkton  v.  Attorney- 
General,  3  Kuss.  &  My.  147,  156;  Crease 
V.  Barrett,  1  Cromp.  Mees.  &  Ros.  919, 
928;  Casey  v.  O'Shaunessy,  7  Jur.  1140; 
Gregorys.  Baugh,  4  Rand.  007  ;  Jewell  v. 
Jewell,  1  How.  tS.C.)  231;  s.c.  17  Peters, 
213;  Kaywood  v.  Barnett,  3  Dev.  &  Bat. 
91 ;  Jackson  v.  Browner,  18  Johns.  37 ; 
Chapman  v.  Chapman,  2  Conn.  347 ; 
Waldron  v.  Tuttle,  4  N.  H.  371.  The 
declarations  of  a  mother,  in  disparage- 
ment of  the  legitimacy  of  her  cliild,  have 
been  received  in  a  question  of  succession. 
Hargrave  v.  Hargrave,  2  C.  &  K.  701 
[Mooersy.  Bunker,  9  Foster  (N.  H.),  420; 
Emerson  v.  White,  LI.  482;  Kelley  v.  Mc- 
Guire,  15  Ark.  5.55]. 

2  Doe  V.  Griffin,  15  East,  20.  There 
is  no  valid  objection  to  such  evidence,  be- 
cause it  is  hearsay  upon  hearsay,  pro- 
vided all  the  declarations  are  within  the 
family.  Thus,  the  declarations  of  a  de- 
ceased lady,  as  to  what  had  been  stated 
to  her  by  her  husband  in  hfs  lifetime, 
were  admitted.  Doe  v.  Randall,  2  M.  & 
P.  20;  Monkton  v.  Attorncv-Gcneral,  ,2 
Russ.  &  My.  105;  Bull.  N.  P.' 295;  Elliott 
c.  Piersoll,  1  Putcrs,  328,  337.  It  is  for 
tlio  judge  to  decide,  whether  the  decla- 
rants were  "  members  of  the  family  so  as 
to  render  their  evidence  admissible;" 
ami  for  the  jury  to  settle  the  fact  to 
whicii  tb.eir  declarations  relate.  Doe  v. 
Davis,  11  Jur.  007  ;  10  Ad.  &  El.  n.  8. 
314.  [See  also  Copes  v.  Pearce,  7  Gill, 
247;  Clements  v.  Hunt,  1  Jones  (N.  C), 
Law,  400.]  In  regard  to  the  value  and 
weight  to  be  given  to  this  kind  of  evi- 
dence, the  following  observations  of  Lord 
Langdale,  M.  \i.,  are  entitled  to  great 


consideration.  "In  cases,"  said  he, 
"  where  the  whole  evidence  is  tradi- 
tionary, when  it  consists  entirely  of 
family  reputation,  or  of  statements  of 
declarations  made  by  persons  who  died 
long  ago,  it  must  be  taken  with  such 
allowances,  and  also  with  such  suspicions, 
as  ought  reasonably  to  be  attached  to  it. 
When  family  reputation,  or  declarations 
of  kindred  made  in  a  family,  are  the  sub- 
ject of  evidence,  and  the  reputation  is  of 
long  standing,  or  the  declarations  are  of 
old  date,  the  memory  as  to  the  source  of 
the  reputation,  or  as  to  the  persons  who 
made  the  declarations,  can  rarely  be 
characterized  by  perfect  accuracy.  What 
is  true  may  become  blended  with,  and 
scarcely  distinguishable  from,  something 
that  is  erroneous ;  the  detection  of  error 
in  any  part  of  the  statement  necessarily 
throws  doubt  upon  the  whole  statement, 
and  yet  all  that  is  material  to  the  cause 
may  be  perfectly  true ;  and  if  the  whole 
be  rejected  as  false,  because  error  in  some 
part  is  proved,  the  greatest  injustice  may 
be  done.  All  testimony  is  subject  to 
such  errors,  and  testimony  of  this  kind 
is  more  particularly  so;  an<l  however 
difficult  it  may  be  to  discover  the  truth, 
in  cases  where  there  can  be  no  demon- 
stration, and  where  every  conclusion 
which  may  be  drawn  is  subject  to  some 
doubt  or  uncertaint}',  or  to  some  oppos- 
ing probabilities,  the  courts  are  bound 
to  adopt  the  conclusion  which  appears  to 
rest  on  the  most  solid  foundation."  See 
Johnson  v.  Todd,  5  Boav.  599,  (>(>0.  |In 
Johnson  v.  Howard,  1  H.  &  McII.  281, 
traditional  evidence  by  common  repute 
was  admitted  to  show  that  two  persons 
were  brothers  of  the  half  blood,  it  not 
appearing  that  hotter  evidence  was  pro- 
curable.] 


CHAP,  v.] 


HEABSAY. 


127 


braces  not  only  descent  and  relationship,  but  also  the  facts  of 
birth,  marriage,  and  death,  and  the  times  when  these  events  hap- 
pened. These  facts,  therefore,  may  be  proved  in  the  manner 
above  mentioned,  in  all  cases  where  they  occur  incidentally,  and 
in  relation  to  pedigree.  Thus,  an  entry,  by  a  deceased  parent  or 
other  relative,  made  in  a  Bible,  family  missal,  or  any  other  book, 
or  in  any  document  or  paper,  stating  the  fact  and  date  of  the 
birth,  marriage,  or  death  of  a  child,  or  other  relative,  is  regarded 
as  a  declaration  of  such  parent  or  relative  in  a  matter  of  pedi- 
gree.^ So,  also,  the  correspondence  of  deceased  members  of  the 
family,  recitals  in  family  deeds,  such  as  marriage  settlements, 
descriptions  in  wills,  and  other  solemn  acts,  are  original  evidence 
in  all  cases  where  the  oral  declarations  of  the  parties  are  admissi- 
ble.2  In  regard  to  recitals  of  pedigree  in  bills  and  answers  in 
Chancer}^,  a  distinction  has  been  taken  between  those  facts  which 
are  not  in  dis]5ute  and  those  which  are  in  controversy ;  the  former 
being  admitted,  and  the  latter  excluded.^  Recitals  in  deeds, 
other  than  family  deeds,  are  also  admitted,  when  corroborated 
by  long  and  peaceable  possession  according  to  the  deed,* 


1  The  Berkley  Peerage  case,  4  Campb. 
401,  418;  Doe  v.  Bray,  8  B.  &  C.  813; 
Monkton  v.  The  Attorney-General,  2 
Euss.  &  iSIy.  147 ;  Jackson  v.  Cooley,  8 
Jolms.  Vl%,  131,  per  Thompson,  J.; 
Douglas  V.  Saiinderson,  2  Dall.  116  ;  The 
Slane  Peerage  case,  5  Clark  &  Fin.  24 ; 
Carskaddcn  v.  Poorman,  10  Watts,  82; 
The  Sussex  Peerage  case,  11  Clark  & 
Fin.  85;  Watson  v.  Brewster,  1  Barr, 
881.  [Betty  v.  Nail,  6  Ir.  Law,  x.  s.  17.] 
And  in  a  recent  case  this  doctrine  lias 
been  thought  to  warrant  the  admission 
of  declarations,  made  by  a  deceased  per- 
son, as  to  where  his  family  came  from, 
where  he  came  from,  and  of  what  place 
his  father  was  designated.  Shields  v. 
Boucher,  1  DeGex  &  Smale,  40.  [So 
also  the  common  reputation  in  the  family 
is  sufficient  evidence  of  the  death  of  a 
person.  Anderson  v.  Parker,  6  Cal.  197. 
See  also  Redfield  on  Wills,  part  2,  §  1. 
So  also  in  regard  to  the  time  of  one's 
death.  Morrill  v.  Foster,  33  N.  H.  379.] 
But  not  in  regard  to  his  age.  Roe  v. 
Neal,  Dudley  (Ga.),  168;  Kidney  v.  Cock- 
burn,  2  P.  &  M.  1G8.  But  see  Roe  v. 
Rawlings,  7  East,  290.  Nor  the  place  of 
his  birth.  Wilmington  v.  Burlington,  4 
Pick  174.  ?sor  the  location  of  the  home- 
stead. Hall  V.  Mayo,  97  Mass.  416; 
Adams  r.  Swansea,  116  ISIass.  591. 

2  Bull.  N.  P.  233;  Neal  v.  Wilding,  2 
Str.  1151,  per  Wright,  J. ;  Doe  v.  E.  of 


Pembroke,  11  East,  503  ;  Whitelocke  v. 
Baker,  13  Ves.  514 ;  Elliott  v.  PiersoU,  1 
Pet.  328;  1  Ph.  Evid.  216,  217,  and  peer- 
age cases  there  cited.  In  two  recent 
cases,  the  recitals  in  the  deeds  were  held 
admissible  only  against  the  parties  to 
the  deeds ;  but  in  neither  of  those  cases 
was  the  party  proved  to  have  been  re- 
lated to  those  whose  pedigree  was  recited. 
In  Fort  V.  Clarke,  1  Russ.  601,  the  grant- 
ors recited  the  death  of  the  sons  of  John 
Cormick,  tenants  in  tail  male,  and  de- 
dared  themselves  heirs  of  the  bodies  of  his 
daughters,  who  were  devisees  in  remain- 
der; and  in  Slaney  v.  Wade,  1  Mylne  & 
Craig,  338,  the  grantor  was  a  mere  trustee 
of  tJie  estate,  not  related  to  tlie  parties. 
See  also  Jackson  v.  Cooley,  8  Johns.  128; 
Jackson  r.  Russell,  4  AVend.  543;  Keller 
V.  Xutz,  5  S.  &  R.  251.  If  the  recital  in 
a  M-ill  is  made  after  the  fact  recited  is  in 
controversy,  tlie  will  is  not  admissible  as 
evidence  of  that  fact.  The  Sussex  Peer- 
age case,  11  Clark  &  Fin.  85. 

3  Phil.  &  Am.  on  Evid.  281,  232,  and 
the  authorities  there  cited.  Ex  parte 
affidavits,  made  several  years  before,  to 
prove  pedigree  b^'  official  requirement, 
and  prior  to  any  lis  mota,  are  admissible. 
Hurst  V.  Jones,  Wall.  Jr.  373,  App.  3. 
As  to  the  effect  of  a  lis  mofa  upon  the  ad- 
missibility of  declarations  and  reputation, 
see  infra^%%  131-1.34. 

*  Stokes    V.    Daws,    4    Mason,    268. 


128  LAW   OF  EVIDENCE.  [PAET  U. 

§  105.  Inscriptions.  Inscriptions  oti  tombstones,  and  other  funeral 
monuments,  engravings  on  rings,  inscriptions  on  family  portraits, 
charts,  or  pedigree,  and  the  like,  are  also  admissible,  as  original 
evidence  of  the  same  facts.  Those  which  are  proved  to  have 
been  made  by  or  under  the  direction  of  a  deceased  relative  are 
admitted  as  his  declarations.  But  if  they  have  been  publicly 
exhibited,  and  were  well  known  to  the  family,  the  publicity  of 
them  supplies  the  defect  of  proof,  in  not  showing  that  they  were 
declarations  of  deceased  members  of  the  family ;  and  they  are 
admitted  on  the  ground  of  tacit  and  common  assent.  It  is  pre- 
sumed, that  the  relatives  of  the  family  would  not  permit  an 
inscription  without  foundation  to  remain ;  and  that  a  person 
would  not  wear  a  ring  with  an  error  on  it.^  Mural  and  other 
funeral  inscriptions  are  provable  by  copies,  or  other  secondary 
evidence,  as  has  been  already  shown.^  Their  value,  as  evidence, 
depends  much  on  the  authority  under  which  they  were  set  up, 
and  the  distance  of  time  between  their  erection  and  the  events 
they  commemorate.^ 

§  106.  Family  conduct.  Under  this  head  may  be  mentioned 
family  conduct,  such  as  the  tacit  recognition  of  relationship,  and 
the  disposition  and  devolution  of  property,  as  admissible  evidence, 
from  which  the  opinion  and  belief  of  the  family  may  be  inferred, 
resting  ultimately  on  the  same  basis  as  evidence  of  family  tradi- 
tion. Thus,  it  was  remarked  by  Mansfield,  C.  J.,  in  the  Berkley 
Peerage  case,^  that,  "  if  the  father  is  proved  to  have  brought  up 
the  party  as  his  legitimate  son,  this  amounts  to  a  daily  assertion 
that  the  son  is  legitimate."  And  Mr.  Justice  Ashhurst,  in  another 
'case,  remarked  that  the  circumstance  of  the  son's  taldng  the  name 
of  the  person  with  whom  his  mother,  at  the  time  of  his  birth,  lived 

[Common  practice,  in   regard   to   one's  N.  R.  141.    Armorial  bearings,  proved  to 

name,  is  not  ohjectionable  on  the  ground  have  existed  while  the  heralds  had  the 

of  hearsay.   Willis  n.  Quimby,  11  Foster,  power  to  punish  usurpations,  possessed 

485.]  an  official  weight  and  credit.     But  this 

*  Per    Lord    Erskine,  in    Vowles    i-.  authority  is  thought  to  have  cea.'sed  with 

Young,  13   Ves.   144;    Monkton   v.   The  the  last  herald's  visitation,  in  1686.     See 

Attorney-General,  2  Kus.  &  Mylne,  147  ;  1  Pliil.  Kvid.2:i4.    At  present  they  amount 

Kidney    v.    Cockburn,     Id.     107 ;     The  to   no   more    than    family    declarations. 

Camoys  Peerage,  0  CI.  «&  Fin.  789.    An  [See  Shrewsbury  Peerage,  7  H.  L.  Cas. 

ancient    pedigree,    purporting    to   have  1.] 

been  collected  from  hisiori/,  as  well  as  2  Supra,  §  94.     [See  also  Eastman  v. 

from  other  sources,  was  held  admissible,  Martin,  I'J  N.  II.  152.1 
at  least  to  sliow  tlie  relationship  of  per-  »  Some  remarkable  mistakes  of  fact 

sons  described  by  the  framer  as  living,  in  such   in.scriptions    are   mentioned   in 

and  therefore  to  be  presumed  as  known  1  Phil.  Evid.  222. 
to   him.      Davies  v.  Lowndes,   7   Scott,  *  4  Campb.  416. 


CHAP,  v.]  HEARSAY.  129 

in  a  state  of  adultery,  which  name  he  and  his  descendants  ever 
afterwards  retained,  "  was  a  very  strong  family  recognition  of  his 
illegitimacy."  ^  So,  the  declarations  of  a  person,  since  deceased, 
that  he  was  going  to  visit  his  relatives  at  such  a  place,  have  been 
held  admissible  to  show  that  the  family  had  relatives  there  .^ 

§  107.  Marriage.  It  is  frequently  said,  that  general  reputation 
is  admissible  to  prove  the  fact  of  the  marriage  of  the  j)arties 
alluded  to,  even  in  ordinary  cases,  where  pedigree  is  not  in  ques- 
tion. In  one  case,  indeed,  such  evidence  was,  after  verdict,  held 
sufficient,  prima  facie,  to  warrant  the  jury  in  finding  the  fact  of 
marriage,  the  adverse  party  not  having  cross-examined  the  witness, 
nor  controverted  the  fact  by  proof.^  But  the  evidence  produced 
in  the  other  cases  cited  in  support  of  this  position  cannot  properly 
be  called  hearsay  evidence,  but  was  strictly  and  truly  original 
evidence  of  facts  from  which  the  marriage  might  well  be  inferred  ; 
such  as  evidence  of  the  parties  being  received  into  society  as  man 
and  wife,  and  being  visited  by  respectable  families  in  the  neighbor- 
hood, and  of  their  attending  church  and  public  places  together  as 
such,  and  otherwise  demeaning  themselves  in  public,  and  address- 
ing each  other  as  persons  actually  married.* 

§  108.  Res  gestae.  There  are  other  declarations  which  are  ad- 
mitted as  original  evidence,  being  distinguished  from  hearsay  by 
their  connection  with  the  principal  fact  under  investigation.     The 

1  Goodright  v.  Saul,  4  T.  R.  356.  Day,  290,  293;   In  re  Taylor,  9  Paige, 

2  Rishton  V.  Nesbitt,  2  M.  &  Rob.  252.  611  [post,  vol.  ii.  §§  461,  4G2.  It  seems 
[These  declarations  embrace  what  is  to  be  requisite,  in  regard  to  the  ad- 
said  by  liusband  or  wife,  as  to  the  connec-  missibility  of  evidence  of  reputation 
tions  in  the  family  of  the  other,  but  not  to  prove  a  marriage,  that  the  persons 
those  made  by  members  of  the  family  of  from  whom  the  information  is  derived 
one  as  to  the  family  of  the  other.  And  should  be  shown  to  have  deceased,  or 
letters  maybe  produced  to  show  how  the  that  the  reputation  should  be  known  to 
wife  was  addressed  by  members  of  her  the  witness  to  have  been  general  among 
own  family.  Shrewsbury  Peerage  case,  the  connections  in  the  family,  and  tliat 
7  H.  L.  Cas.  1.]  there  sliould  have  been  no  controversy 

3  Evans  v.  Morgan,  2  C.  &  J.  453.  in  regard  to  it.  For  after  tlie  existence 
[Contra,  Westfield  i'.  Warren,  8  N.  J.  Law,  of  lis  viola  it  is  not  competent  to  give 
249.  Nor  is  reputation  receivable  as  evidence  of  such  reputation  ;  and  it  will 
evidence  that  two  persons  lived  together  not  be  allowed  to  give  such  evidence 
in  concubinage.  Corrie  v.  Gumming,  26  upon  proof  that  such  suit  was  fraud u- 
Ga.  GliO;  Henderson  v.  Gargill,  31  Miss,  lently  instituted  for  tlie  purpose  of  ex- 
o67.  But  see  llargrave  v.  Hargrave,  2  eluding  tlie  testimony.  But  tlie  exist- 
C.  &  K.  701;  Jewell  v.  Jewell,  1  How.  ence  of  a  former  suit  between  tlie  same 
(U.  S.)  219.]  parties  will  not  exclude  such  reputation, 

*  1  Phil.  Evid.  234,  235;  Hervey  v.  unless  the  same  point  were  brought  into 

Hervey,  2  W.  Bl.  877 ;  Birt  v.  Barlow,  controversy,  wliicli  it  is  now  sought  to 

Doug.  171,  174 ;  Read  r.  Passer,  1  Esp.  establisli.      Butler  v.  Mountgarrett,  7  H. 

218;  Leader  v.  Barry,   Id.  353;  Doe  v.  L.  Cas.  6-33;  Shedden  y.  Patrick,  2  Sw. 

Fleming,  4  Bing.  260;  Sraitli  v.  Smith,  1  &  Tr.  170]. 
Phillim.  204;    Hammick   v.  Brouson,  5 

VOL.   I.  9 


130 


LAW  OF  EVIDElSrCE. 


[pABT  n. 


affairs  of  men  consist  of  a  complication  of  circumstances  so  inti- 
mately interwoven  as  to  be  hardly  separable  from  each  other. 
Each  owes  its  birth  to  some  preceding  circumstance,  and,  in  its 
turn,  becomes  the  prolific  parent  of  others ;  and  each,  during  its 
existence,  has  its  inseparable  attributes,  and  its  kindred  facts, 
materially  affecting  its  character,  and  essential  to  be  knwn  in 
order  to  a  right  understanding  of  its  nature.  These  surrounding 
circumstances,  constituting  parts  of  the  res  gestce,  may  always  be 
shown  to  the  jury,  along  with  the  principal  fact ;  and  their  admissi- 
bility is  determined  by  the  judge,  according  to  the  degree  of  their 
relation  to  that  fact,  and  in  the  exercise  of  his  sound  discretion ; 
it  being  extremely  difficult,  if  not  impossible,  to  bring  this  class 
of  cases  within  the  limits  of  a  more  particular  description.^  The 
principal  points  of  attention  are,  whether  the  circumstances  and 
declarations  offered  in  proof  were  contemporaneous  with  the  main 
fact  under  consideration,  and  whether  they  were  so  connected 
with  it  as  to  illustrate  its  character.^     Thus,  in  the  trial  of  Lord 


1  Per  Park,  J.,  in  Rawson  v.  Haigh,  2 
Bing.  104;  Ridley  v.  Gyde,  9  Bing.  349, 
352;  Pool  V.  Bridges,  4  Pick.  379;  Allen 
V.  Duncan,  11  Pick.  309  [Haynes  v.  Rat- 
ter, 24  Pick.  242;  Gray  v.  Goodrich,  7 
Johns.  95;  Bank  of  Woodstock  v.  Clark, 
25  Vt.  308;  Mitchum  v.  State,  11  Ga. 
615;  Tomkies  v.  Reynolds,  15  Ala.  109; 
Cornelius  v.  The  State,  7  Eng.  782. 
When  an  act  is  done  to  which  it  is 
necessary  or  important  to  ascribe  a  char- 
acter, njotive,  or  object,  what  was  said 
by  the  actor  at  the  time  from  which  the 
character,  motive,  or  cause  may  be  col- 
lected, is  part  of  the  rfs  (lesice,  verbal  acts, 
and  may  be  given  in  evidence,  whether 
tlie  actor  be  or  be  not  a  party  to  the  suit. 
Bateman  o.  B;iiley,  5  T.  R.  512;  Gilchrist 
r.  Bale,  8  Watts  (Pa  ),  355;  Barnes  v. 
Allen,  1  Keyes  (N.  Y.),  390;  Swift  v. 
Mass.  Mut.  "Life  Ins.  Co.,  Ct.  of  App. 
N.  Y.  In.  L.  J.,  Jan.  187();  Hadley  r.  Car- 
ter, 8  N.  II.  40;  Garber  v.  State,  4  Cold. 
(Tenn.)  HU]. 

On  the  trial  of  an  action  brought  by  a 
principal  against  an  ngent  who  had  charge 
of  certain  l)usiness  of  the  principal  for 
many  years,  to  recover  money  received 
by  tlie  defendant  from  cl;inciestine  sales 
of  projjcrty  of  the  jilaintilf,  and  money  of 
the  plaintifl'  framhilently  taken  by  the 
defendant,  evidence  that  tlie  defendant 
at  tiie  time  of  entering  the  plaintiff's 
service  was  insolvent,  and  that  ho  liad 
since  received  ordy  a  limited  siihiry  anil 
some  small  additional  compensation,  and 


that  subsequent  to  the  time  of  his  alleged 
misdoings,  and  during  the  period  speci- 
fied in  the  writ,  he  was  the  owner  of  a 
large  property,  far  exceeding  the  aggre- 
gate of  all  his  salary  and  receipts  while 
in  the  plaintiff's  service,  is  admissible  as 
having  some  tendency  to  prove,  if  the 
jury  are  satisfied  by  other  evidence,  that 
monej''  had  been  taken  from  the  plaintiff 
by  some  one  in  his  employ,  that  the  de- 
fendant is  the  guilty  person ;  such  facts 
being  in  nature  of  res  gcstm  accompany- 
ing the  very  acts  and  transactions  of  the 
defendant  under  investigation,  and  tend- 
ing to  give  them  character  and  signifi- 
cance. And  the  declarations  of  the  de- 
fendant concerning  his  property  and 
business  transactions,  made  to  third  per- 
sons, in  the  absence  of  tlie  plaintiff  or 
his  agents,  are  inadmissible  to  rebut  sucli 
evidence.  Boston  &  W.  1^  R.  (^orp.  v. 
Dana,  1  Gray,  88,  101,  103  fllackett  ;;. 
King,  8  Allen,  144].  See  also  Common- 
wealtii  V.  Montgomery,  11  JMet.  584. 

2  Declarations,  to  become  part  of  the 
res  (jext(p,  "  nnist  have  been  made  at  the 
time  of  the  act  done,  which  they  are  sup- 
posed tocdiaracterize  ;  and  have  been  well 
calculated  to  unfold  the  nature  and  qual- 
ity of  the  facts  they  were  intended  to  ex- 
l)lain,  and  so  to  harmonize  with  them  as 
obviously  to  constitute  one  transaction." 
I'cr  Ilosnier,  C.  J.,  in  Enos  v.  Tuttle,  3 
Conn.  250.  And  see  In  re  Taylor,  9 
I'aige.  fill ;  Carter  c.  I'uchannon,  3  Kel- 
Icy,  513;  Blood  u  Rideout,  13  Met.  237; 


CHAP,  v.] 


HEABSAY. 


131 


George  Gordon  for  treason,  the  cry  of  the  mob  who  accompanied 
the  prisoner  on  his  enterprise  was  received  in  evidence,  as  form- 


Boyden  v.  Burke,  14  How.  S.  C.  575. 
[Declarations  to  be  admissible  must  tend 
to  characterize  tlie  act,  Elliins  v.  Hamil- 
ton, 20  Vt.  627 ;  but,  if  not  consist- 
ent with  the  obvious  character  of  the  act, 
they  will  not  control  it.  State  v.  Shellidy, 
8  Clarke  (Iowa),  477.  If  the  declaration 
is  connected  with,  or  grows  out  of,  the 
act,  although  not  contemporaneous  with 
it,  but  happening  after  the  lapse  of 
Bome  time,  it  is  admissible  ;  as,  where 
an  accident  happens,  and  the  injured 
party  declares  to  the  physician,  called 
soon  after  tiie  accident,  how  it  hap- 
pened, Harriman  v.  Stowe,  57  Mo.  93 ; 
or  a  person  immediately  escaping  from 
an  assault  declares  who  committed  it. 
Com.  V.  McPike,  3  Cush.  (Mass.)  181.  See 
also  Insurance  Co.  v.  Morley,  8  Wall. 
(U.  S.)  397,  where  it  is  said  that  the  ten- 
dency of  recent  cases  is  to  extend  rather 
than  to  narrow  the  scope  of  the  rule  ad- 
mitting declarations  as  part  of  tlie  resfjestce. 
And  following  this  case  the  landlord  of  a 
hotel,  where  a  party  had  shot  himself,  was 
allowed  to  testify  that  the  occupants  of 
an  adjoining  room  came  out,  "seemingly 
excited  and  saying  something  about  the 
man  having  shot  himself,"  as  part  of  the 
res  gestae,  the  issue  being  whether  the  de- 
ceased died  by  his  own  hand,  and  the  oc- 
cupant of  the  adjoining  room  being  dead. 
Kewton  v.  Mut.  Ben.  Life  Ins.  Co.,  2  Dill, 
C.  Ct.,  U.  S.  154.  See  also  Beaver  v.  Tay- 
lor, 1  Wall.  (U.  S.)  637  ;pos^  §  110;  People 
V.  Vernon,  35  Cal.  49 ;  Hanover  R.  R.  Co. 
V.  Coyle,  55  Pa.  St.  402;  Rawson  v.  Haigh, 
2  Bing.  99 ;  Jewell  v.  Jewell,  1  How. 
(U.  S.)  219;  Brownell  y.  Pacific  R.  R.  Co., 
47  Mo.  239 ;  Rouch  v.  Gt.  West.  R.  R.  Co., 
1  Q.  B.  60;  Fificld  v.  Richardson,  34  Vt. 
410.  On  the  trial  of  a  prisoner  for  mur- 
der, a  'statement  made  by  him  a  few 
minutes  after  the  homicide,  near  the 
place  and  in  the  liearing  and  presence  of 
eye-witnesses  of  the  homicide,  who  were 
not  called  by  the  commonwealth,  is  ad- 
laissible  for  the  prisoner  as  a  part  of  the 
res  (jestcB.  Little's  case,  25  Graft.  (Va.) 
921.  In  Jordan's  case,  25  Gratt.  (Va.) 
943,  the  description  of  the  robber,  as 
given  by  the  wife  of  the  person  robbed, 
to  the  officer  a  "few  moments  "(how  many 
does  not  appear)  after  the  crime  was  com- 
mitted, was  admitted  as  part  of  the  res 
pefitie.  And  see  ante,  §  102,  n.  So,  the 
declaration  of  a  party  assaulted,  made 
immediately  after  the  assault,  showing 
the  character  of  tlie  impression  made 
at  the  time  on   his  mind  in  regard  to 


the  nature  of  the  attack,  are  admissible. 
Monday  c.  State,  32  Ga.  672.  So,  the  dec- 
larations of  a  defendant,  as  to  the  cir- 
cumstances under  which  he  killed  a  run- 
away slave,  niade  immediately  after  the 
fact,  are  admissible  in  an  action  of  tres- 
pass for  killing  the  slave.  Hart  v.  Pow- 
ell, 18  Ga.  635.  So,  the  declarations  of  a 
deceased  son  as  to  the  manner  in  which 
he  was  injured,  made  after  the  injury, 
are  admissible,  as  part  of  the  res  gestce, 
against  the  fatlier,  in  an  action  by  him 
against  the  party  alleged  to  have  caused 
the  injury.  Stein  v.  R.  R.  Co.,  C.  C.  P. 
Phila.  7  Leg.  Gaz.  233.  But  this  is  ad- 
missible, on  perhaps  a  better  ground. 
See  post,  §  180.]  But  declarations  ex- 
planatory of  a  previous  fact,  e.g.  how 
the  party's  hands  became  bloody,  are 
inadmissible.  Scraggs  v.  The  State,  8 
Smed.  &  Marsh.  722.  So,  where  a  party, 
on  removing  an  ancient  fence,  put  down 
a  stone  in  one  of  the  post-holes,  and  the 
next  day  declared  that  he  placed  it  there 
as  a  boundary;  it  was  held  that  this  dec- 
laration, not  constituting  part  of  the  act 
done,  was  inadmissible  in  evidence  in  his 
favor.  Noyes  v.  Ward,  19  Conn.  250. 
See  Corinth  v.  Lincoln,  34  Maine,  310. 
In  an  action  by  a  bailor  against  the  bailee, 
for  loss  by  his  negligence,  the  declara- 
tions of  the  bailee,  contemporaneous 
with  the  loss,  are  admissible  in  his  favor, 
to  show  the  nature  of  the  loss.  Story 
on  Bailm.  §  339,  cites  Tompkins  v.  Salt- 
marsh,  14  S.  &  R.  275;  Beardslee  v. 
Richardson,  11  Wend.  25;  Doorman  v. 
Jenkins,  2  Ad.  &  El.  80.  So,  in  a  suit 
for  enticing  away  a  servant,  his  declara- 
tions at  the  time  of  leaving  his  master 
are  admissible,  as  part  of  the  res  gestce,  to 
show  the  motive  of  his  departure.  Had- 
ley  V.  Carter,  8  N.  H.  40.  [In  Lund  v. 
Tyngsborough,  9  Cush.  3G,  which  was  an 
action  for  injuries  received  through  a 
defect  in  a  highway,  during  tlie  trial  at 
Nisi  Prins,  a  witness  was  permitted  to 
say  in  reply  to  the  question,  "At  the 
time  when  he  ( the  doctor,  who  died  before 
the  trial)  was  called,  and  while  engaged 
in  such  examination,  what  did  he  say 
concerning  such  injury,  its  nature  and 
extent?  "  that  "I  heard  him  say  that  it 
was  a  very  serious  injury;  that  it  was 
more  injured  than  though  the  bone  was 
broken,"  &c.  It  did  not  appear  how  long 
it  was  after  the  accident  happened  when 
these  declarations  were  made.  The  full 
bench  decided  that  the  evidence  was 
wrongly  admitted;   and,  in  giving  the 


132 


LAW   OF   EVIDEXCE. 


[PABT  n. 


ing  part  of  the  res  gestce,  and  showing  the  character  of  the  princi- 
pal fact.^  So,  also,  where  a  person  enters  into  land  in  order  to 
take  advantage  of  a  forfeiture,  to  foreclose  a  mortgage,  to  defeat 
a  disseisin,^  or  the  like  ;  or  changes  his  actual  residence,  or  domi- 
cile, or  is  upon  a  journey,  or  leaves  his  home,  or  returns  thither, 
or  remains  abroad,  or  secretes  himself;  or,  in  fine,  does  any  other 
act,  material  to  be  understood  ;  his  declarations,  made  at  the  time 
of  the  transaction,  and  expressive  of  its  character,  motive,  or 
object,  are  regarded  as  "verbal  acts,  indicating  a  present  purpose 
and  intention,"  and  are  therefore  admitted  in  pro'of  like  any  other 
material  facts.^  So,  upon  an  inquiry  as  to  the  state  of  mind, 
sentiments,  or  dispositions  of  a  person  at  any  particular  period, 
his  declarations  and  conversations  are  admissible.'*  They  are 
parts  of  the  res  gestce.^ 


opinion  of  the  court,  Fletcher,  J.,  states 
at  some  length  the  rules  of  law  applica- 
ble to  the  admissibilitj'  of  this  class  of 
testimony,  which  the  profession  will  find 
a  valuable  summary  of  the  law  upon  the 
point.] 

1  21  Howell's  St.  Tr.  542.  [In  an  in- 
dictment for  keeping  a  house  of  ill  fame, 
evidence  of  conversations  held  by  men 
immediately  upon  coming  out  of  the 
house,  and   upon  the  sidewalk  in  front 

^.thereof,  but  not  in  presence  of  tlie  de- 
fendant, nor  of  any  of  the  inmates,  as  to 
what  had  taken  place  in  tlie  house,  has 
been  held  to  be  inadmissible  as  part  of 
the  res  (jest(e,  and  tending  to  show  the 
character  of  the  visitors  in  the  house. 
Commonwealth  v.  Harwood,  4  Gray,  41.] 

2  Co.  Litt.  49  h,  245  b;  Kobinson  v. 
Swett,  3  Greenl.  316 ;  3  Bl.  Coram.  174, 
175. 

3  Bateman  v.  Bailey,  5  T.  R.  512,  and 
the  observations  of  Mr.  Evans  upon  it  in 
2  Potli.  Ohl.  Ai)p.  No.  xvi.  §  11 ;  Hawson 
V.  Haigh.  2  Bing.  99;  Newman  v.  Stretch, 
1  M.  &  M.  388;  Ridley  v.  Gyde,  9  Bing. 
349,  352  ;  Smith  i:  Cramer,  1  Bing.  N.  C. 
685;  Gorliam  >•.  Canton,  (5  Greenl.  2iJG  ; 
Fellowes  v.  Williamson,  I  M.  &  M.  300; 
Vaclier  v.  Cocks,  Id.  353 ;  1  B.  &  Ad. 
135;  Thorndike  v.  Citv  of  Boston,  1  Met. 
242;  Carroll  v.  The  State,  3  Humph.  315; 
Kilburn  v.  Hennet,  3  ]\Iet.  199  ;  Salem  v. 
Lynn,  13  Met.  544 ;  I'orter  v.  Ferguson, 
4  Fla.  104  [Autaugu  County  i;.  Davis, 
32  Ala.  703]. 

*  Barthelemy  v.  The  People,  &c.,  2 
Hill  (N.  Y.),  248,  2.37;  Wetmore  v.  Mell, 
1  Ohio,  y.  s.  2f,  [supra.  §  102;  Shailer 
V.  Bumstead,  99  Mass.  112). 

*  [It  is  only  when  the  thing  done  Is 


equivocal,  and  it  is  necessary  to  render 
its  meaning  clear,  and  expressive  of  a 
motive  or  object,  that  it  is  competent  to 
prove  declarations  accompanying  it,  as 
falling  within  tlie  class  of  res  gestce.  By 
Bigelow,  J.,  in  Nutting  v.  Page,  4  Gray, 
584.  Thus,  the  reasons  stated  by  the 
master-workman,  when  building  a  dam, 
for  making  it  lower  in  the  middle  than 
at  either  end,  are  not  competent  evidence 
against  his  employer  that  it  was  so  made ; 
nor  are  the  instructions  given  by  the 
owner  of  the  dam  while  rebuilding  it,  to 
mark  the  height  of  the  old  dam  and  to 
erect  the  new  one  of  the  same  height. 
Nutting  I'.  Page,  nt  supra.  See  also 
Carleton  v.  Patterson,  9  Foster  (N.  H.), 
680.  The  conduct  and  exclamations  of 
passengers  on  a  railroad  at  the  time  of 
an  accident,  though  not  in  tlie  presence 
of  the  party  receiving  an  injury,  are  ad- 
missible as  part  of  the  rrs  i/rsta',  to  justify 
the  con<luctof  the  ])artv  injured.  Galena, 
&c.  R.  R.  Co. ).'.  Fay,  1(1  111.  558.  A  letter 
wliicli  is  part  of  the  its  (jes/d-,  is  admissi- 
bk-  in  evidence,  although  the  writer  of  it 
might  be  a  witness.  Roach  v.  Learned, 
37  Maine,  110.  In  a  question  of  settle- 
ment the  paujier's  declarations  when  in 
the  act  of  removing  are  admissible. 
Rlchmoiul  I'.  Thomaston,  38  Maine,  232; 
Cornville  v.  Brighton,  39  lb.  333.  The 
acts  and  sayings  of  a  constable  at  the 
time  of  a  levy,  are  admissible  as  part  of 
the  res  ijcsta;,  in  an  action  against  tiie 
sureties  on  his  bond  for  neglecting  to 
make  a  return  thereof.  Dobbs  i;.  Justices, 
17  Geo.  624.     (.4;/^^  §  104.] 

So  it  has  been  recently  held,  in  Eng- 
land, that  it  is  comiietent  for  tlie  j)laiiitilf, 
for  the  purpose  of  proving  upon  whose 


CHAP.  Y.] 


HEARSAY. 


133 


§  109.  Declarations  as  to  title.  In  regard  to  the  declarations  of 
persons  in  possession  of  land,  explanatory  of  the  character  of  their 
possession,  there  has  been  some  difference  of  opinion ;  but  it  is 
now  well  settled,  that  declarations  in  disparagement  of  the  title  of 
the  declarant  are  admissible  as  original  evidence.  Possession  is 
prima  facie  evidence  of  seisin  in  fee-simple  ;  and  the  declaration 
of  the  possessor,  that  he  is  tenant  to  another,  it  is  said,  makes 
most  strongly  against  his  own  interest,  and  therefore  is  admissi- 
ble.^ But  no  reason  is  perceived  why  every  declaration  accom- 
panjing  the  act  of  possession,  whether  in  disparagement  of  the 
claimant's  title,  or  otherwise  qualifying  his  possession,  if  made  in 
good  faith,  should  not  be  received  as  part  of  the  res  gestce  ;  leading 
its  effect  to  be  governed  by  other  rules  of  evidence.^ 


credit  the  goods  sued  for  were  sold,  to 
put  in  evidence  a  letter  written  by  liim- 
self,  at  the  time  the  bargain  was  made, 
to  his  agent,  desiring  liim  to  inquire,  as 
to  the  credit  of  the  defendant,  of  a  per- 
son to  whom  the  person  receiving  the 
goods  had  referred  him  for  that  pur- 
pose, and  stating  tlierein  that  the  de- 
fendant was  tlie  buyer.  And  it  was 
further  considered,  that  tlie  jury  miglit 
look  at  the  whole  letter,  and  although, 
in  itself,  it  was  not  evidence  of  the 
truth  of  tlie  facts  affirmed,  it  might 
be  considered  as  corroborative  of  tlie 
plaintiff's  version  of  tlie  transaction. 
Milne  v.  Leisler,  7  H.  &  N.  786;  s.  c.  8 
Jur.  N.  8.  121 ;  Eastman  v.  Bennett,  6 
Wis.  232,  where  the  same  principle  is 
maintained.] 

^  Peaceable  v.  "Watson,  4  Taunt.  16, 
17,  per  Mansfield,  C.  J. ;  West  Cambridge 
V.  Lexington,  2  Pick.  536,  per  Putnam,  J. ; 
Little  V.  Libbv,  2  Greenl.  242;  Doe  v.  Pet- 
tett,  5  B.  &  Aid.  223 ;  Carne  v.  Nicholl,  1 
Bing.  N.  C.  430 ;  per  Lyndhurst,  C.  B.,  in 
Chambers  v.  Bernasconi,  1  Cromp.  &  Jer. 
457;  Smith  v.  Martin,  17  Conn.  399;  in- 
fra, §  189. 

2  Davies  v.  Pierce,  2  T.  R.  53;  Doe  v. 
Eickarby,  5  Esp.  4;  Doe  v.  Payne,  1 
Stark.  (59;  2  Poth.  on  Obi.  254,  App. 
No.  xvi.  §  11;  Rankin  v.  Tenbrook,  6 
Watts,  388,  31t0,  per  Huston,  J. ;  Doe  v. 
Pettett,  5  B.  &  Aid.  223  ;  Reed  i-.  Dickev, 
1  Watts,  152;  Walker  r.  .Broadstock,'l 
Esp.  458  ;  Doe  v.  Austin,  9  Bing.  41 ;  Doe 
r.  Jones,  1  Campb.  3G7  ;  Jackson  v.  13ard, 
4  Johns.  230,  234 ;  Weidman  v.  Kohr,  4  S. 
&R.  174;  GibblehoHse  v.  Strong,  3Rawle, 
437;  Norton  r.  Pettibone,  7  Conn.  319; 
Snelgrove  v.  Martin,  2  McCord,  241,  243 ; 
Doe  d.  Majoribanks  v.  Green,  1  Gow, 
227 ;  Carne  v.  Nicoll,  1  Bing.  N.  C.  480 ; 


Davis  V.  Campbell,  1  Iredell,  482;  Crane 
I'.  Marshall,  4  Shepl.  27 ;  Adams  v.  French, 
2  N.  H.  287;  Treat  v.  Strickland,  10 
Shepl.  284 ;  Blake  v.  White.  13  N.  H.  267  ; 
Doe  V.  Langfield,  16  M.  &  W.  497 ;  Baron 
de  Bode's  case,  8  Ad.  &  El.  n.  s.  243,  244 ; 
Abney  v.  Kingsiand,  10  Ala.  355 ,  Dag- 
gett V.  Shaw,  5  Met.  223  [Bartlett  r. 
Emerson,  7  Gray,  174;  Ware  v.  Brook- 
house,  Id.  454;  Flagg  v.  Mason,  8  Gray, 
556;  Wood  v.  Foster,  8  Allen,  24]. 
Stark  V.  Boswell  6  Hill  (N.  Y.),  405;  Pike 
I'.  Hayes,  14  N.  H.  19  ;  Smith  v.  Powers, 
15  N.  H.  546,  563  [Marcy  v.  Stone,  8 
Cush.  4 ;  Stearns  v.  Hendersass,  9  lb. 
497 ;  Plimpton  r.  Chamberlain,  4  Gray, 
320 ;  Hvde  v.  Middlesex  Co.,  2  Grav,  267  ; 
Potts  V.  Everhart,  26  Penn.  St.  493;  St. 
Clair  V.  Shale,  20  lb.  105;  Doe  v.  Camp- 
bell, 1  Ired.  482;  Brewer  i'.  Brewer,  19 
Ala.  481.  A  declaration  by  a  tenant, 
dead  at  the  time  of  the  trial,  that  he  was 
not  entitled  to  common  of  pasture  in 
respect  to  his  farm,  is  not  admissible 
against  his  reversioner.  Papendick  v. 
Bridgwater,  30  Eng.  Law  &  Eq.  293]. 
Accordingly,  it  has  been  held,  that  a 
statement  made  by  a  person  not  sus- 
pected of  theft  and  before  any  search 
made,  accounting  for  his  possession  of 
property  whicli  he  is  afterwards  charged 
with  having  stolen,  is  admissible  in  his 
favor.  Rex  v.  Abraham,  2  Car.  &  K.  550. 
But  see  Smith  v.  Martin,  17  Conn.  399. 
Where  a  party  after  a  post-nuptial  settle- 
ment mortgaged  the  same  premises,  it 
was  held  that,  as  his  declarations  could 
bind  him  only  while  the  interest  remained 
in  him,  his  declarations,  as  to  the  consid- 
eration paid  by  the  subsequent  purchaser, 
were  not  admissible  against  the  claimants 
under  the  settlement,  for  this  would  ena- 
ble him  to  cut  down  his  own  previoua 


134  LAW   OF  EVIDENCE.  [PABT  H. 

§  110.  Must  be  concomitant.  It  is  to  be  observed,  that,  where 
declarations  offered  in  evidence  are  merely  narrative  of  a  past 
occurrence,  they  cannot  be  received  as  proof  of  the  existence  of 
such  occurrence.  They  must  be  coyicomitant  with  the  principal 
act,  and  so  connected  with  it  as  to  be  regarded  as  the  mere  result 
and  consequence  of  the  coexisting  motives,  in  order  to  form  a 
proper  criterion  for  directing  the  judgment  which  is  to  be  formed 
upon  the  whole  conduct.^  On  this  ground,  it  has  been  holden 
that  letters  written  during  absence  from  home  are  admissible  as 
original  evidence,  explanatory  of  the  motive  of  departure  and 
absence,  the  departure  and  absence  being  regarded  as  one  con- 
tinuing act.2 

§  111.  Declarations  of  conspirators.  The  same  principles  apply 
to  the  acts  and  declarations  of  one  of  a  company  of  conspirators, 
in  regard  to  the  common  design  as  affecting  his  fellows.  Here  a 
foundation  must  first  be  laid  by  proof  sufficient  in  the  opinion 
of  the  judge  to  establish  prima  facie  the  fact  of  conspiracy 
between  the  parties,  or  proper  to  be  laid  before  the  jury  as  tend- 
ing to  establish  such  fact.  The  connection  of  the  individuals  in 
the  unlawful  enterprise  being  thus  shown,  every  act  and  declara- 
tion of  each  member  of  the  confederacy,  in  pursuance  of  the 
original  concerted  plan,  and  with  reference  to  the  common  object, 
is,  in  contemplation  of  law,  the  act  and  declaration  of  them  all ; 
and  is  therefore  original  evidence  against  each  of  them.  It  makes 
no  difference  at  what  time  any  one  entered  into  the  conspiracy. 
Every  one  who  does  enter  into  a  common  purpose  or  design  is 
generally  deemed,  in  law,  a  party  to  every  act  which  had  before 

acts.    Doe  v.  Webber,  3  Nev.  &  Man.  586.  See  also  Boyden  v.  Moore,  11  Pick.  362  ; 

[And  it  has  recently  been  held  in  Eng-  Walton  v.  Green,  1  C.  &  P.  521 ;  Heed  v. 

land,  Reg.  v.  Birmingham,  5  L.  T.  n.  s.  Dick,  8  Watts,  479;  O'Kelly  v.  O'Kelly, 

80'>,  that   the  oral  declaration  of  a  de-  8  Met.  436 ;  Styles  v.  Western  Railroad 

ceased  occupant  of  premises,  that  he  oc-  Corp.,  Id.  44  [Battles  v.  Batchelder,  39 

cupied  the  same  as  tenant  at  a  rent  of  Maine,  19]. 

£•20  per  annum,  was  admissible  to  prove  ^  Rawson  v.  Haigh,  2  Bing.  99,  104; 
rot  only  the  fact  of  the  tenancy,  but  the  Marsh  v.  Davis,  24  Vt.  303;  Nov  Mil- 
amount  of  the  rent.]  ford  V.  Sherman,  21  Conn.  101.  'The 
1  2  Poth.  on  ()h\.  by  Evans,  pp.  248,  reasons  given  by  a  wife,  on  the  clai/  a/ler 
240,  App.  No.  xvi.  §  11;  Ambro.se  v.  her  return  to  her  father's  house  for  .eav- 
Clendon,  Cas.  temp.  Hardw.  267;  Doe  v.  ing  her  husband,  are  not  a  part  of  the 
Webber,  1  Ad.  &  El.  733.  In  Ridley  v.  res  qpstce,  as  connected  with  and  part  of 
Gyde,  9  Bing.  349,  whore  the  point  was  the  act  of  leaving  her  iiusband's  house, 
to  establish  an  act  of  bankruptcy,  a  con-  and  so  are  not  admissible  in  evidence  in 
versation  of  the  bankrupt  on  the  20th  of  an  action  brought  by  the  father  against 
November,  being  a  resumption  and  con-  the  husband  for  necessaries  supplied  the 
tinuation  of  one  which  h;id  been  begun,  wife;  those  made  at  the  time  of  the  re- 
but broken  off  on  the  25th  of  October  turn  being  admissible.  Johnson  i».  Sher- 
precediug,   was   admitted    in    evidence,  win,  3  Gray,  374.     See  ante,  §  108.] 


CHAP,  v.]  HEAESAY.  135 

been  done  by  the  others  and  a  party  to  every  act  which  may 
afterwards  be  done  by  any  of  the  others  in  furtherance  of  such 
common  design.^  Sometimes,  for  the  sake  of  convenience,  the 
acts  or  declarations  of  one  are  admitted  in  evidence  before  suffi- 
cient proof  is  given  of  the  conspiracy  ;  the  prosecutor  undertaking 
to  furnish  such  proof  in  a  subsequent  stage  of  the  cause.  But 
this  rests  in  the  discretion  of  the  judge,  and  is  not  permitted, 
except  under  particular  and  urgent  circumstances ;  lest  the  jury 
ghould  be  misled  to  infer  the  fact  itself  of  the  conspiracy  from 
the  declarations  of  strangers.  And  here,  also,  care  must  be  taken 
that  the  acts  and  declarations,  thus  admitted,  be  those  only  which 
were  made  and  done  during  the  pendency  of  the  criminal  enter 
prise,  and  in  furtherance  of  its  objects.  If  they  took  place  at  a 
subsequent  period,  and  are,  therefore,  merely  narrative  of  past 
occurrences,  they  are,  as  we  have  just  seen,  to  be  rejected.'-^  The 
term  acts  includes  written  correspondence,  and  other  papers  rela- 
tive to  the  main  design;  but  whether  it  includes  unpublished 
writings  upon  abstract  questions,  though  of  a  kindred  nature,  has 
been  doubted.^  Where  conversations  are  proved,  the  effect  of 
the  evidence  will  depend  on  other  circumstances,  such  as  the  fact 
and  degree  of  the  prisoner's  attention  to  it,  and  his  assent  or  dis- 
approval.* 

§  112.  Declarations  of  partners.  This  doctrine  extends  to  all 
cases  of  partnership.  Wherever  any  number  of  persons  associate 
themselves  in  the  joint  prosecution  of  a  common  enterprise  or 
design,  conferring  on  the  collective  body  the  attribute  of  indi- 
viduality by  mutual  compact,  as  in  commercial  partnerships  and 

1  Rex  V.  "Watson,  32  Howell's  St.  Tr.  the  others,  and  several  weeks  after  the 
7,  per  Bayley,  J. ;  Rex  v.  Brandreth,  Id.  fact,  was  admitted  by  Garrow,  B.,  with- 
857,  858;  Rex  v.  Hardy,  24  Howell's  St.  out  such  restriction.  Where  no  common 
Tr.  451 ,  4.52,  453,  475 ;  American  Fur  Co.  object  or  motive  is  imputed,  as  in  actions 
V.  The  United  States,  2  Peters,  358,  365;  for  negligence,  the  declaration  or  admis- 
Crowninshield's  case,  10  Pick.  497 ;  Rex  sion  of  one  defendant  is  not  .admittetl 
V.  Hunt,  3  B.  &  Aid.  566 ;  1  East,  P.  C.  against  any  but  himself.  Daniels  v. 
97,  §  38 ;  Nichols  v.  Dowding.  1  Stark.  81.  Potter,  1  M.  &  M.  501.     [The  acts  of  one 

2  Rex  r.  Hardy,  supra.  The  declara-  accomplice,  so  far  as  they  are  part  of 
tions  of  one  co-trespasser,  where  several  the  res  gesfce  only,  are  evidence  against 
are  jointly  sued,  may  be  given  in  evi-  another.  The  flight  of  one  is  not  evi- 
dence against  himself,  at  whatever  time  dence  of  guilt  of  another.  People  v. 
it  was  made;  but,  if  it  was  not  part  of  Stanley,  47  Cal.  113.] 

the  1-es  gesffe,  its  effect  is  to  be  restricted  ^  Foster,  198 ;  Rex  v.  Watson,  2  Stark. 

to  the  partv  making  it.     Yet,  in  Wright  116,  141-147. 

V.  Court.  2  "C.  &  P.  232,  which  was  an  ac-  *  Rex  v.  Hardy,  24  Howell's  St.  Tr. 

tion  for  false  imprisonment,  the  declara-  703,  per   Eyre,    C.  J.   [Reg.  v.   Blake,  6 

tion  of  a  co-defendant,  showing  personal  Q.  B.  126]. 

malice,  though  made  in  the  absence  of 


136 


LAW   OF   EVIDENCE. 


[part  II. 


similar  cases,  the  act  or  declaration  of  eacli  member,  in  further- 
ance of  the  common  object  of  the  association,  is  the  act  of  all. 
By  the  very  act  of  association,  each  one  is  constituted  the  agent 
of  all.i  While  the  being  thus  created  exists,  it  speaks  and  acts 
only  by  the  several  members  ;  and,  of  course,  when  that  existence 
ceases  by  the  dissolution  of  the  firm,  the  act  of  an  individual 
member  ceases  to  have  that  effect;  binding  himself  alone,  except 
so  far  as  by  the  articles  of  association  or  of  dissolution  it  may 
have  been  otherwise  agreed.^  An  admission,  however,  by  one 
partner,  made  after  the  dissolution,  in  regard  to  business  of  the 
firm,  previously  transacted,  has  been  held  to  be  binding  on  the 
firm.^ 


1  Sandilands  v.  Marsh,  2  B.  &  Aid. 
673,  678,  679;  Wood  v.  Braddick,  1 
Taunt.  104,  and  Petherick  i-.  Turner  et  al. 
there  cited;  Rex  i'.  Hardwick,  11  East, 
578,  589 ;  Van  Keimsdyk  v.  Kane,  1  Gall. 
630,  635 ;  Nichols  i'.  Dowding,  1  Stark. 
81 ;  Hodempyl  o.  Vinserhoed,  Chitty  on 
Bills,  618,  n.  (2);  Colt  v.  Tracy,  8 
Conn.  268.  [In  an  action  against  two 
as  alleged  copartners,  evidence  of  state- 
ments and  declarations  wliicli  would  be 
admissible  only  upon  tlie  assumption  of 
the  existence  of  tiie  copartnership,  is  in- 
competent to  prove  such  copartnership. 
Dutton  V.  Woodman,  9  Cush.  255;  All- 
cott  V.  Strong,  9  Cush.  323.  And  evi- 
dence to  show  the  continuance  of  a  part- 
nership after  it  has  been  dissolved,  with 
notice  to  the  parties,  must  be  as  satisfac- 
tory as  tliat  required  to  show  its  estab- 
lishment.    Allcott  V.  Strong,  ut  supra.} 

2  Bell  V.  Morrison,  1  Peters,  371;  Bur- 
ton V.  Issitt,  5  B.  &  Aid.  267. 

s  This  doctrine  was  extended  by  Lord 
Brougliam,  to  tlie  admission  of  payment 
to  the  partner  after  the  dissolution. 
Pritchard  i-.  Draper,  1  lluss.  &  M.  191, 
199,  2U0.  See  Wood  v.  Braddick,  1  Taunt. 
104  ;  Whitcomb  (•.  Whiting,  2  Doug.  652  ; 
approved  in  Mclntire  r.  Oliver,  2  Hawks, 
2t)9  ;  Beitz  v.  Puller,  1  McCord,  541 ;  C-ady 
V.  Shepiierd,  11  Pick.  400;  Van  Reimsdyk 
f.  Kane,  1  Gall.  635, 636.  See  also  Parker 
V.  Merrill,  6  Grcenl.  41  ;  Martin  v.  Root, 
17  Mass.  223,  227;  Vinal  v.  Burrill,  16 
Pick.  401 ;  Lefavour  v.  Yandes,  2  Blackf. 
240  ;  Briilge  i;.  Gray,  14  I'ick.  55  ;  Gay  v. 
Bowen,  8  Met.  lOU;  Mann  v.  Locke,  11 
N.  II.  246,  to  the  same  point.  [See 
also  Loomis  v.  Loomis,  26  Vt.  198 ;  Pierce 
r.  Wood,  3  Foster,  519 ;  Drumright  i'. 
Philpot,  16  Geo.  424.  But  wliere,  after 
tiie  dissolution  of  a  copartnership,  one 
partner  assigned  his  interest  in  a  partner- 


ship claim  against  the  defendant  to  the 
other  partner,  in  a  suit  on  such  claim 
brought  in  the  name  of  both  partners  for 
the  benefit  of  the  assignee,  the  declarations 
of  the  assignor  made  after  tlie  assignment 
are  not  admissible  in  favor  of  the  defend- 
ant. Gillighan  v.  Tebbetts,  33  Maine, 
300.]  In  New  York,  a  different  doctrine 
is  established.  Walden  r.  Siierburne,  15 
Joims.  409;  Hopkins  v.  Banks,  7  Cowen, 
650  ;  Clark  v.  Glcason,  9  Cowen,  57 ;  Ba- 
ker V.  Stackpole,  Id.  420.  So  in  Louisiana. 
Lambeth  v.  Vawter,  6  Rob.  (La.)  127. 
See,  also,  in  support  of  the  text.  Lacy  v. 
McNeil,  4  Dowl.  &  Ry.  7.  Whether  the 
acknowledgment  of  a  debt  by  a  partner, 
after  dissolution  of  tlie  partnership,  will 
be  sufficient  to  take  the  case  out  of  the 
statute  of  limitations,  and  revive  the  rem- 
edy against  the  others,  has  been  very 
much  controverted  in  this  country  ;  and 
the  authorities  to  the  point  are  cimllicting. 
In  England,  it  is  now  settled  I)y  Lord  Ten- 
terden's  Act  (9  Geo.  4,  c.  14),  that  such 
acknowledgment,  or  new  promise,  inde- 
pendent of  the  fact  of  part  payment,  shall 
not  have  such  effect,  except  against  the 
party  making  it.  Tliis  provision  has  been 
adopted  in  the  laws  of  some  of  the  United 
States.  See  Mnssachusetls,  Rev.  Sts.  c. 
120,  §§  14-17  ;  Vermont,  Rev.  Sts.  c.  58, 
§§  23,  27.  And  it  has  since  been  holden 
in  England,  where  a  debt  was  originally 
contracted  witii  a  partnership,  and  more 
than  six  years  afterwards,  but  within  six 
years  before  action  l)rouglit,  the  partner- 
ship having  been  dissolved,  one  partner 
maile  a  partial  payment  in  respect  of  the 
debt,  —  that  this  barred  the  operation  of 
the  statute  of  limitations;  although  the 
jury  found  that  he  made  the  payment 
by  concert  with  the  plaintiffs,  in  the  jaws 
of  bankruptcy,  and  in  fraud  of  his  late 
partners.     Goddard  v.  Ingram,  3  Ad.  & 


CHAP,  v.] 


HEAKSAY. 


137 


§  113.  Agents.     A  kindred  principle  governs  in  regard  to  the 
declarations  of  agents.     The  principal  constitutes  the  agent  his 


El.  N.  s.  8o9.  The  American  cases  seem 
to  have  turned  mainly  on  the  question, 
whether  the  admission  of  ttie  existing  in- 
debtment  amounted  to  the  making  of  a 
new  contract,  or  not.  The  courts  which 
have  viewed  it  as  virtually  a  new  contract 
have  held,  that  the  acknowledgment  of 
the  deht  by  one  partner,  after  the  dissolu- 
tion of  partnership,  was  not  admissible 
against  his  copartner.  This  side  of  the 
question  was  argued  b}'  Mr.  Justice  Story, 
with  his  accustomed  ability,  in  delivering 
the  judgment  of  the  court  in  Bell  v.  Mor- 
rison, 1  Peters,  307  et  seq. ;  where,  after 
stating  the  point,  he  proceeded  as  follows  : 
''  In  the  case  of  Bland  (j.  Haselrig,  '2  Vent. 
151,  where  the  action  was  against  four 
upon  a  joint  promise,  and  the  ])lca  of  the 
statute  of  limitations  was  put  in,  and  the 
jury  found  that  one  of  the  defendants  did 
promise  within  six  years,  and  that  the 
others  did  not ;  three  judges,  against  Ven- 
tris,  J.,  held  that  the  plaintitt'  could  not 
have  judgment  against  the  defendant,  who 
had  made  the  promise.  Tliis  case  has 
been  explained  upon  the  ground,  that  the 
verdict  did  not  conform  to  the  pleadings, 
and  estal)lish  a  joint  promise.  It  is  very 
doubtful,  upon  a  critical  examination  of 
the  report,  whether  the  opinion  of  the 
court,  or  of  any  of  the  judges,  proceeded 
solely  upon  such  ground.  In  Whitcomb 
V.  Whiting,  2  Doug.  652,  decided  in  1781, 
in  an  action  on  a  joint  and  several  note 
brought  against  one  of  the  makers,  it  was 
held,  that  proof  of  payment,  by  one  of  the 
others,  of  interest  on  the  note  and  of  part 
of  the  principal,  within  six  years,  took  the 
case  out  of  the  statute,  as  against  the  de- 
fendant who  was  sued.  Lord  Mansfield 
said, '  payment  by  one  is  payment  for  all, 
the  one  acting  virtually  for  all  the  rest ; 
and  in  the  same  manner,  an  admission  by 
<one  is  an  admission  by  all,  and  the  law 
raises  the  promise  to  pay,  when  the  debt  is 
admitted  to  be  due.'  This  is  the  whole  rea- 
soning reported  in  the  case,  and  is  certainly 
not  very  satisfactory.  It  assumes  that 
one  party,  who  has  authority  to  discharge, 
has  necessarily,  also,  authority  to  charge 
the  others  ;  that  a  virtual  agency  exists  in 
each  joint  debtor  to  pay  for  the  whole  ; 
and  that  a  virtual  agency  exists  by  analogy 
to  charge  the  whole.  Now,  this  very  posi- 
tion constitutes  the  matter  in  controversy. 
It  is  true,  that  a  payment  by  one  does  in- 
ure for  the  benefit  of  the  whole  ;  but  this 
arises  not  so  much  from  any  virtual  agency 
for  the  whole,  as  by  operation  of  law  ;  for 
the  payment  extinguishes  the  debt ;   if 


such  payment  were  made  after  a  positive 
refusal  or  prohibition  of  the  other  joint 
debtors,  it  would  still  operate  as  an  extin- 
guishment of  the  debt,  and  the  creditor 
could  no  longer  sue  them.  In  truth,  he 
who  pays  a  joint  debt,  pays  to  discharge 
himself  ;  and  so  far  from  binding  the 
others  conclusively  by  his  act,  as  virtually 
theirs  also,  he  cannot  recover  over  against 
them,  in  contribution,  without  such  pay- 
ment has  been  rightfully  made,  and  ought 
to  charge  them.  When  the  statute  has 
run  against  a  joint  debt,  the  reasonable 
presumption  is  that  it  is  no  longer  a  sub- 
sisting debt ;  and,  therefore,  there  is  no 
ground  on  which  to  raise  a  virtual  agency 
to  pay  that  which  is  not  admitted  to  ex- 
ist. But  if  this  were  not  so,  still  tliere  is  a 
great  difference  between  creating  a  vir- 
tual agency  which  is  for  the  benefit  of 
all,  and  one  which  is  onerous  and  preju- 
dicial to  all.  The  one  is  not  a  natural 
or  necessary  consequence  from  the  other. 
A  person  may  well  authorize  the  payment 
of  a  debt  for  which  he  is  now  liable,  and 
yet  refuse  to  authorize  a  charge,  where 
there  at  present  exists  no  legal  liability 
to  pay.  Yet,  if  the  principle  of  Lord 
Mansfield  be  correct,  the  acknowledg- 
ment of  one  joint  debtor  will  bind  all 
the  rest,  even  though  they  should  have 
utterly  denied  the  debt  at  the  time  when 
such  acknowledgment  was  made.  The 
doctrine  of  Whitcomby.  Whiting  has  been 
followed  in  England  in  subsequent  cases, 
and  was  resorted  to  in  a  strong  manner, 
in  Jackson  v.  Fairbank,  2  H.  Bl.  340, 
where  the  admission  of  a  creditor  to  prove 
a  debt,  on  a  joint  and  several  note  under 
a  bankruptcj',  and  to  receive  a  dividend, 
was  held  sufficient  to  charge  a  solvent 
joint  debtor,  in  a  several  acti<m  against 
him,  in  which  he  pleaded  the  statute,  aa 
an  acknowledgment  of  a  subsisting  debt. 
It  has  not,  however,  been  received  without 
hesitation.  In  Clark  v.  Bradshaw,  3  Esp. 
155,  Lord  Kenyon, at  Nisi Piins, expressed 
some  doubts  upon  it ;  and  the  cause  went 
off  on  another  ground.  And  in  Bradrani 
V.  Wharton,  1  Barn.  &  Aid.  463,  the  case 
was  very  much  shaken,  if  not  overturned. 
Lord  Ellenborough,  upon  that  occasion 
used  language,  from  which  his  dissatisfac- 
tion with  the  whole  doctrine  may  be  clearly 
inferred.  '  This  doctrine,'  said  he, '  of  re- 
butting the  statute  of  limitations,  by  an 
acknowledgment  other  than  that  of  the 
party  himself,  began  with  the  case  of 
Whitcomb  v.  Whiting.  By  that  decision, 
where,  however,  there  was  an  express  ac- 


138 


LAW   OF  EVIDENCE. 


[part  n. 


representative,  in  the  transaction  of  certain  business ;  whatever, 
therefore,  the  agent  does,  in  the  lawful  prosecution  of  that  busi- 


knowledgment,  by  an  actual  payment  of  a 
part  of  the  debt  by  one  of  the  parties,  I  am 
bound.  But  that  case  was  full  of  hard- 
ships ;  for  tliis  inconvenience  may  follow 
from  it.  Suppose  a  person  liable  jointly 
■with  thirty  or  forty  others,  to  a  debt;  he 
may  liave  actually  paid  it,  he  may  have 
liad  in  his  possession  the  document  by 
which  that  payment  was  proved,  but  may 
have  lost  his  receipt.  Then,  though  this 
was  one  of  the  very  cases  which  this  stat- 
ute was  passed  to  protect,  he  may  still  be 
bound,  and  his  liability  be  renewed,  b}'  a 
random  acknowledgment  made  by  some 
one  of  the  thirty  or  forty  others,  who  may 
be  careless  of  what  mischief  he  is  doing, 
and  who  may  even  not  know  of  the  pay- 
ment which  has  been  made.  Beyond  that 
case,  therefore,  I  am  not  prepared  to  go, 
so  as  to  deprive  a  party  of  the  advantage 
given  him  by  the  statute,  by  means  of  an 
implied  acknowledgment.'  In  the  Ameri- 
can courts,  so  far  as  our  researches  have 
extended,  few  cases  have  been  litigated 
upon  this  question.  In  Smith  v.  Ludlow, 
6  Johns.  268,  the  suit  was  brought  against 
both  partners,  and  one  of  them  pleaded 
the  statute.  Upon  the  dissolution  of  the 
partnership,  public  notice  was  given  that 
the  other  partner  was  authorized  to  adjust 
all  accounts ;  and  an  account  signed  by 
him,  after  such  advertisement,  and  within 
six  years,  was  introduced.  It  was  also 
proved,  tiiat  the  plaintiff  called  on  the 
partner,  who  pleaded  the  statute,  before 
the  commencement  of  the  suit,  and  re- 
quested a  settlement,  and  tliat  he  then 
admitted  an  account,  dated  in  1797,  to 
have  been  made  out  by  him;  that  he 
thought  the  account  had  been  settled  by 
the  other  defendant,  in  whose  hands  the 
books  of  partnersliip  were ;  and  tliat  he 
would  see  the  other  defendant  on  the  sub- 
ject, and  comnrunicate  the  result  to  the 
plaintiff.  The  court  held  that  this  was 
sufficient  to  take  the  case  out  of  the  stat- 
ute ;  and  said  tliat,  without  any  express 
authority,  the  confession  of  one  partner, 
after  the  dissolution,  will  take  a  debt  out 
of  the  statute.  The  acknowledgment  will 
not,  of  itself,  be  evidence  of  an  original 
debt ;  for  that  would  enable  one  party  to 
bind  the  other  in  new  contracts.  But 
the  original  debt  being  proved  or  admitted, 
the  confession  of  one  will  bind  the  other, 
60  as  to  prevent  him  from  availing  himself 
of  the  statute.  Tfiis  is  evident,  from  tlie 
casis  of  Whitcoinb  r.  Whiting,  and  Jack- 
eon  c.  Fairbank  ;  iind  it  results  necessarily 
from  the  power  given  to  adjust  accounts. 


The  court  also  thought  the  acknowledg- 
ment of  the  partner,  setting  up  the  stat- 
ute, was  sufficient  of  itself  to  sustain  the 
action.  This  case  has  the  peculiarity  of 
an  acknowledgment  made  by  botli  part- 
ners, and  a  formal  acknowledgment  by 
the  partner  who  was  authorized  to  adjust 
the  accounts  after  the  dissolution  of  the 
partnershij).  There  was  not,  therefore,  a 
virtual,  but  an  express  and  notorious 
agency,  devolved  on  him,  to  settle  the  ac- 
count. The  correctness  of  the  decision 
cannot,  upon  the  general  view  taken  by 
the  court,  be  questioned.  In  Roosevelt  v. 
Marks,  6  Johns.  Ch.  266,  291,  Mr.  Chan- 
cellor Kent  admitted  the  authority  of 
Whitcomb  v.  Whiting,  but  denied  that  of 
Jackson  v.  Fairbank,  for  reasons  which 
appear  to  us  solid  and  satisfactory.  Upon 
some  other  cases  in  New  York,  we  shall 
have  occasion  hereafter  to  connnent.  In 
Hunt  I'.  Bridgham,  2  Pick.  581,  the  Su- 
preme Court  of  Massachusetts,  upon  the 
authority  of  the  cases  in  Douglas, H.  Black- 
stone,  and  Johnston,  held,  that  a  partial 
payment  by  the  principal  debtor  on  a  note, 
took  the  case  out  of  the  statute  of  limita- 
tions, as  against  a  surety.  The  court  do 
not  proceed  to  any  reasoning  to  establish 
the  principle,  considering  it  as  the  result 
of  the  authorities.  Shelton  v.  Cocke,  3 
Munford,  191,  is  to  the  same  effect;  and 
contains  a  mere  annunciation  of  the  rule, 
without  any  discussion  of  its  principle. 
Simpson  r.  Morrison,  2  Bay,  533,  pro- 
ceeded upon  a  broader  ground,  and  as- 
sumes the  doctrine  of  the  case  in  1  Taunt. 
104,  hereinafter  noticed,  to  be  correct. 
Whatever  may  be  the  just  influence  of 
such  recognitions  of  the  principles  of  the 
English  cases,  in  other  States,  as  the  doc- 
trine is  not  so  settled  in  Kentucky,  we 
must  resort  to  such  recognition  only  as 
furnishing  illustrations  to  assist  our  rea- 
soning, and  decide  the  case  now  as  if  it 
liad  never  been  decided  before.  By  the 
general  law  of  partnership,  the  act  of  each 
partner,  during  the  continuance  of  the 
partnership,  and  within  the  scope  of  its 
objects,  binds  all  the  others.  It  is  con- 
sidered the  act  of  each,  and  of  all,  result- 
ing from  a  general  and  mutual  delegation 
of  authority.  Each  partner  may,  there- 
fore, bind  the  partnership  by  his  contracts 
in  tiie  partnersliip  business;  but  he  cannot 
bind  it  by  any  contracts  bi-yond  those  lim- 
its. A  dissolution,  liowcvi-r,  puts  an  end 
to  the  authority.  By  the  force  of  its  terms, 
it  operates  as  a  revocation  of  all  power  to 
create  new  contracts ;  and  the  right  of 


CHAP,  v.] 


HEAESAY. 


139 


ness,  is  the  act  of  the  principal  whom  he  represents.      And, 
"  where  the  acts  of  the  agent  will  bind  the  principal,  there  his 


partners,  as  such,  can  extend  no  further 
than  to  settle  the  partnership  concerns 
already  existing,  and  to  distribute  the  re- 
maining funds.  Even  this  rigrlit  niaj-  be 
qualified,  and  restrained,  by  the  express 
delegation  of  the  whole  authority  to  one 
of  the  partners.  Tiie  question  is  not,  how- 
ever, as  to  the  authority  of  a  partner  after 
the  dissolution  to  adjust  an  admitted  and 
subsisting  debt ;  we  mean,  admitted  by 
the  whole  partnership  or  unbarred  by  the 
statute;  but  whether  he  can.  by  his  sole 
act,  after  the  action  is  barred  by  lapse  of 
time,  revive  it  against  all  the  partners, 
without  any  new  authority  communicated 
to  him  for  this  purpose.  We  think  the 
proper  resolution  of  this  point  depends 
upon  another;  that  is,  wiiether  the  ac- 
knowledgment or  promise  is  to  be  deemed 
a  mere  continuation  of  the  original  prom- 
ise, or  a  new  contract,  springing  out  of, 
and  supported  by,  the  original  considera- 
tion. We  tlunk  it  is  the  latter,  both  upon 
principle  and  authority  ;  and  if  so,  as  after 
the  dissolution  no  one  partner  can  create 
a  new  contract,  binding  upon  the  others, 
his  acknowledgment  is  inoperative  and 
void,  as  to  them.  There  is  some  confu- 
sion in  the  language  of  the  books,  result- 
ing from  a  want  of  strict  attention  to  the 
distinction  here  indicated.  It  is  often 
said,  that  an  acknowledgment  revives  the 
promise,  when  it  is  meatit,  that  it  revives 
the  debt  or  cause  of  action.  The  revival 
of  a  debt  supposes  that  it  has  once  been 
extinct  and  gone  ;  that  there  has  been  a 
period  in  which  it  had  lost  its  legal  use 
and  validity.  The  act  which  revives  it 
is  what  essentially  constitutes  its  new  be- 
ing, and  is  inseparable  from  it.  It  stands 
not  by  its  original  force,  but  by  the  new 
promise,  which  imparts  vitality  to  it. 
Proof  of  the  latter  is  indispensable,  to 
raise  the  assumpsit,  on  which  an  action 
can  be  maintained.  It  was  this  view  of 
the  matter  which  first  created  a  doubt, 
whether  it  was  not  necessary  that  a  new 
consideration  should  be  proved  to  support 
the  promise  since  the  old  consideration 
was  gone.  That  doubt  has  been  over- 
come ;  and  it  is  now  held,  that  the  original 
consideration  is  sufficient,  if  recognized, 
to  uphold  the  new  promise,  although  the 
statute  cuts  it  off,  as  a  support  for  the  old. 
What,  indeed,  would  seem  to  be  decisive 
on  this  subject  is,  that  the  new  promise, 
if  qualified  or  conditional,  restrains  the 
rights  of  the  party  to  its  own  terms ;  and 
if  he  cannot  recover  by  those  terms,  he  can- 
not recover  ai  all.    If  a  person  promise  to 


pay,  upon  condition  that  the  other  do  an 
act,  performance  must  be  shown,  before 
any  title  accrues.  If  the  declaration  lays 
a  promise  by  or  to  an  intestate,  proof  of 
the  acknowledgment  of  the  debt  by  or  to 
his  personal  representative  will  not  main- 
tain the  writ.  Why  not,  since  it  estab- 
lishes the  continued  existence  of  the  debt  1 
Tlie  plain  reason  is,  that  the  promise  is  a 
new  one,  by  or  to  the  administrator  him- 
self, upon  the  original  consideration ;  and 
not  a  revival  of  the  original  promise.  So, 
if  a  man  promises  to  pay  a  pre-existing 
debt,  barred  by  the  statute,  when  he  is 
able,  or  at  a  future  day,  his  ability  must 
be  shown,  or  the  time  must  be  passed  be- 
fore the  action  can  be  maintained.  Why  ? 
Because  it  rests  on  the  new  promise,  and 
its  terms  must  be  complied  with.  We  do 
not  here  speak  of  the  form  of  alleging  the 
promise  in  the  declaration;  upon  which, 
perhaps,  there  has  been  a  diversity  of 
opinion  and  judgment ;  but  of  the  fact  it- 
self, whether  the  promise  ought  to  belaid 
in  one  way  or  another,  as  an  absolute,  or 
as  a  conditional,  promise ;  which  may  de- 
pend on  the  rules  of  pleading.  This  very 
point  came  before  the  twelve  judges,  in 
the  case  of  Heyling  v.  Hastings,  1  Ld. 
Raym.  389,  421," in  the  time  of  Lord  Holt. 
There,  one  of  the  points  was,  '  whether 
the  acknowledgment  of  a  debt  within  six 
years  would  amount  to  a  new  promise,  to 
"bring  it  out  of  the  statute  ;  and  they  were 
all  of  opinion  that  it  would  not,  but  that  it 
was  evidence  of  a  promise.'  Here,  then, 
the  judges  manifestly  contemplated  the 
acknowledgment,  not  as  a  continuation  of 
the  old  promise,  but  as  evidence  of  a  new 
promise  ;  and  that  it  is  tiie  new  promise 
which  takes  the  case  out  of  the  statute. 
Now,  what  is  a  new  promise  but  a  new 
contract ;  a  contract  to  pay,  upon  a  pre- 
existing consideration,  which  does  not  of 
itself  bind  the  party  to  pay  independently 
of  the  contract  1  So,  in  Boy  dell  v.  Drum- 
mond,  2  Campb.  157,  Lord  EUenborough, 
with  his  characteristic  precision,  said : 
'  If  a  man  acknowledges  the  existence  of 
a  debt,  barred  by  the  statute,  the  law  has 
been  supposed  to  raise  a  new  promise  to 
pay  it,  and  thus  the  remedy  is  revived.' 
And  it  may  be  affirmed,  that  the  general 
current  of  the  English  as  well  as  the 
American  authorities  conforms  to  this 
view  of  the  operation  of  an  acknowledg- 
ment. In  Jones  i'.  Moore,  5  Binney,  578, 
Mr.  Chief  Justice  Tilghman  went  into  an 
elaborate  examination  of  this  very  point ; 
and  came  to  the  conclusion,  from  a  review 


140 


LAW   OF  EVIDE2TCE. 


[pABT  n. 


representations,  declarations,  and  admissions,  respecting  the  sub- 
ject-matter, will  also  bind  him,  if  made  at  the  same  time,  and 


of  all  the  cases,  that  an  acknowledgment 
of  the  debt  can  only  be  considered  as  evi- 
dence of  a  new  promise ;  and  he  added, 
'  I  cannot  comprehend  the  meaning  of  re- 
viving the  old  debt  in  any  other  manner, 
than  by  a  new  promise.'  There  is  a  class 
of  cases,  not  yet  adverted  to,  which  mate- 
rially illnstrates  the  right  and  powers  of 
partners,  after  the  dissolution  of  the  part- 
nership, and  bears  directly  on  the  point 
under  consideration.  In  Ilackley  v.  Pat- 
rick, 3  Johns.  530,  it  was  said  by  the  court, 
that 'after  a  dissoluti(m  of  the  partnership, 
the  power  of  one  party  to  bind  the  others 
wholly  ceases.  There  is  no  reason  why 
this  acknowledgment  of  an  account  should 
bind  his  copartners,  any  more  than  his 
giving  a  promissory  note,  in  the  name  of 
the  firm,  or  any  other  act.'  And  it  was 
tlierefore  held,  that  the  plaintiff  must  pro- 
duce further  evidence  of  tlie  existence  of 
an  antecedent  debt,  before  he  could  re- 
cover ;  even  though  the  acknowledgment 
was  by  a  partner  authorized  to  settle  all 
the  accounts  of  the  tirm.  Tiiis  doctrine 
was  again  recognized  by  the  same  court, 
in  Waklen  v.  Sherburne,  15  Johns.  409, 
424,  although  it  was  admitted  that  in 
Wood  V.  Braddick,  1  Taunt.  104,  a  differ- 
ent decision  had  been  had  in  England.  If 
this  doctrine  be  well  founded,  as  we  think 
it  is,  it  furnishes  a  strong  ground  to  ques- 
tion the  efKcacy  of  an  aciinowledgnient  to 
bind  the  partnersliip  for  any  purpose.  If 
it  does  not  establish  the  existence  of  a 
debt  against  tlie  partnership,  why  should 
it  be  evidence  against  it  at  alii  If  evi- 
dence, «//»ii(/e,  of  facts  witiiin  tiie  reach  of 
the  statute,  as  the  existence  of  a  debt, 
be  necessary  before  the  acknowledgment 
binds,  is  not  this  letting  in  all  the  mis- 
chiefs against  wliich  the  statute  intended 
to  guard  tlie  parties ;  viz.,  tlie  introduction 
of  stale  and  dormant  demands  of  long 
standing  and  of  uncertain  proof  ?  If  the 
acknowledgment,  per  se,  does  not  bind  the 
other  partners,  where  is  the  propriety  of 
admitting  i)ro()f  of  an  antecedent  debt,  ex- 
tinguished by  the  statute  as  to  tiiem,  to 
be  revived  witiiout  their  consent  ?  It 
Bcems  dilTicul  t  to  find  a  satisfactory  reason 
why  an  acknowledgment  should  raise  a 
new  promise,  wlien  the  consideration, 
upon  wiiich  alone  it  rests,  as  a  legal  obliga- 
tion, is  not  coupled  witli  it  in  such  a  sliape 
as  to  bind  tlie  parties  ;  tliat  the  parties  are 
not  bouml  by  tlie  admission  of  the  dchi,  as 
a  debt,  but  are  liound  by  tlie  acknowledg- 
ment of  the  debt,  as  a  promise,  upon  ex- 
trinsic proof.     The  doctrine  in  1  Taunt. 


104,  stands  upon  a  clear,  if  it  be  a  legal, 
ground  ;  that,  as  to  the  things  past,  the 
partnership  continues,  and  always  must 
continue,  not  withstanding  the  dissolution. 
That,  however,  is  a  matter  which  we  are 
not  prepared  to  admit,  and  constitutes  the 
very  ground  now  in  controversy.  The 
light  in  which  we  are  disposed  to  consider 
this  question  is,  that  after  a  dissolution  of 
a  partnership,  no  partner  can  crea  t  e  a  cause 
of  action  against  the  other  partners,  except 
by  a  new  authority  communicated  to  him 
for  that  purpose.  It  is  wholly  immaterial 
what  is  the  consideration  which  is  to  raise 
such  cause  of  action,  —  whether  it  be  a  sup- 
posed pre-existing  debt  of  the  partnership, 
or  any  auxiliary  consideration  which 
might  prove  beneficial  to  them.  Unless 
adopted  by  them,  they  are  not  bcwnd  by 
it.  When  the  statute  of  limitations  has 
once  run  against  a  debt,  the  cause  of  action 
against  the  partnership  is  gone.  The  ac 
knowledgment,  if  it  is  to  operate  at  all,  is 
to  create  a  new  cause  of  action  ;  to  revive 
a  debt  which  is  extinct ;  and  thus  to  give 
an  action,  which  lias  its  life  from  the  new 
promise  implied  by  law  from  such  an  ac- 
knowledgment, and  operating  and  limited 
by  its  purport.  It  is,  then,  in  its  essence, 
the  creation  of  a  new  riglit,  and  not  the 
enforcement  of  an  old  one.  We  think, 
that  the  power  to  create  such  a  right  does 
not  exist  after  a  dissolution  of  the  partner- 
ship in  any  partner." 

It  is  to  be  observed,  that  in  this  opinion 
the  court  were  not  unanimous  ;  and  that 
the  learned  judge  declares  tiiat  the  major- 
ity were  "  principally,  though  not  ex- 
clusively, iiiHuenced  by  the  course  of 
decisions  in  Kentucky,"  where  the  action 
arose.  [VVhitcomb  v.  Wiiiting  and  Jack- 
son f.  Fairbank  are  not  now  regarded  with 
much  consideration  in  the  English  courts, 
Davies  v.  Edwards,  G  Eng.  l!  &  Eq.  520; 
and  they  are  regarded  with  still  less  in  the 
courts  of  this  country.  Van  Kuren  v. 
Parmelee,  2  Comst.  (N.' Y.)  528.  See  also 
Angell  on  Limitations,  6th  ed.  §  21)0.)  A 
similar  view  of  tiie  question  has  been 
taken  by  the  courts  of  Peniisi/lranid,  both 
before  and  since  the  decision  of  Bell  v. 
Morrison ;  Levy  v.  Cadet,  17  Serg.  & 
Haw.  127  ;  Seariglit  v.  Craighead,  1 1'enn. 
l;J5 ;  and  it  has  been  followed  by  the 
('Oiirts  of  Iiidiatui.  Yaiides  v.  Lefavour, 
2  Blackf.  ;]71.  Other  judges  have  viewed 
such  admissions  not  as  going  to  create  a 
new  contract,  but  as  mere  acknowledg- 
ments of  the  continued  existence  of  a  debt 
previously  created,  thereby  repelling  the 


CHAP,  v.] 


HEAHSAY. 


141 


constituting  part  of  the  res  gestcey  ^  They  are  of  the  nature 
of  original  evidence,  and  not  of  hearsay ;  the  representation  or 
statement  of  the  agent,  in  such  cases,  being  the  ultimate  fact  to 
be  proved,  and  not  an  admission  of  some  other  fact.^  But,  it 
must  be  remembered,  that  the  admission  of  the  agent  cannot 
always  be  assimilated  to  the  admission  of  the  principal.  The 
party's  own  admission,  whenever  made,  may  be  given  in  evidence 
against  him  ;  but  the  admission  or  declaration  of  his  agent  binds 
him  only  when  it  is  made  during  the  continuance  of  the  agency 
in  regard  to  a  transaction  then  depending  et  dum  fervet  opus. 
It  is  because  it  is  a  verbal  act,  and  part  of  the  res  gestce,  that  it  is 
admissible  at  all ;  and,  therefore,  it  is  not  necessary  to  call  the 
agent  himself  to  prove  it ;  ^  but,  wherever  what  he  did  is  admissi- 
ble in  evidence,  there  it  is  competent  to  prove  what  he  said  about 
the  act  while  he  was  doing  it ;  *  and  it  follows,  that,  where  his 


presumption  of  payment,  resulting  from 
lapse  of  time,  and  thus  taking  tlie  ease  out 
of  tlie  operation  of  tlie  statute  of  limita- 
tions. To  this  effect  are  White  y.  Hale,  3 
Pick.  291 ;  Martin  v.  Hoot,  17  Mass.  222, 
227;  Cadv  v.  Shepherd,  11  Pick.  400; 
Vinal  V.  Burrill,  16  Pick.  401 ;  Bridge 
V.  Gray,  14  Pick.  61 ;  Patterson  v.  Choate, 
7  Wend.  441  ;  Hopkins  v.  Banks,  7 
Cowen,  0-50  ;  Austin  v.  Bostwick,  9  Conn. 
496 ;  Greenleaf  v.  Quincy,  3  Fairf.  11 ; 
Mclntire  v.  Oliver,  2  Hawks,  209  ;  Ward 
V.  Howell,  5  Har.  &  Johns.  60  ;  Fisher  v. 
Tucker,  1  McCord,  Ch.  175;  Wlieelock 
V.  Doolittle,  3  Washb.  Vt.  440.  In  some 
of  the  cases  a  distinction  is  strongly  taken 
between  admissions  which  go  to  establish 
the  original  existence  of  the  debt,  and 
those  wliicli  only  show  that  it  has  never 
been  paid,  but  still  remains  in  its  original 
force  ;  and  it  is  held,  that  before  tlie 
admission  of  a  partner,  made  after  the 
dissolution,  can  be  received,  the  debt 
must  first  be  proved,  aliunde.  See  0\v- 
ings  V.  Low,  5  Gill.  &  Jolms.  134,  144; 
Smith  V.  Ludlow,  6  Johns.  267  ;  Patterson 
V.  Choate,  7  Wend.  441,  445;  Ward  v. 
Howell,  Fisher  v.  Tucker,  Hopkins  v. 
Banks,  Vinal  v.  Burrill,  ubi  suprn ;  Shel- 
ton  V.  Cocke,  3  Munf.  197.  In  Austin  v. 
Bostwick,  the  partner  making  the  admis- 
sion had  become  insolvent ;  but  this  was 
held  to  make  no  difference,  as  to  the 
admissibility  of  his  declaration.  A  dis- 
tinction has  always  been  taken  between  ad- 
missions by  a  partner  after  the  dissolution, 
but  before  tlie  statute  of  limitations  has 
attached  to  the  debt,  and  those  made 
afterwards ;  the  former  being  held  receiv- 


able, and  the  latter  not.  Fisher  v.  Tucker, 
1  McCord,  Ch.  175.  And  see  Scales  v. 
Jacob,  3  Bing.  638 ;  Gardner  v.  McMahon, 
N.  s.  3  Ad.  &  El.  566.  See  f urtiier  on  the 
general  doctrine,  post,  §  174,  n.  In  all 
cases  where  the  admission,  whether  of  a 
partner  or  other  joint  contractor,  is  re- 
ceived against  his  companions,  it  must 
have  been  made  in  good  faith.  Coit  v. 
Tracy,  8  Conn.  268.  See  also  Chardon  v. 
Oliphant,  2  Const.  685;  cited  in  Coll- 
yer  on  Partn.  236,  n.  (2d  Am.  ed.).  It 
may  not  be  useless  to  observe,  that  Bell 
V.  Morrison  was  cited  and  distinguished, 
partly  as  founded  on  the  local  law  of  Ken- 
tucky, in  Parker  v.  Merrill,  6  Greenl.  47, 
48 ;  and  in  Greenleaf  v.  Quincy,  3  Fairf. 
11;  and  that  it' was  not  cited  in  the 
cases  of  Patterson  v.  Choate,  Austin  v. 
Bostwick,  Cady  v.  Shepherd,  Vinal  v. 
Burrill,  and  Yandes  v.  Lefavour,  though 
these  were  decided  subsequent  to  its  pub- 
lication. 

1  Story  on  Agency,  §§  134-1.37. 

2  1  Pliil.  Evid.  381. 

5  Doe  V.  Hawkins,  2  Ad.  &  El.  n.  8. 
212  ;  Sauniere  v.  Wode,  3  Harrison,  299. 

4  Garth  v.  Howard,  8  Bing.  451 ;  Fair- 
lie  V.  Hastings,  10  Ves.  123,  127;  Tlie 
jMechanics'  Bank  of  Alexandria  v.  The 
Bank  of  Columbia,  5  Wheat.  336,  337  ; 
Langhorn  v.  Allnutt,  4  Taunt.  519,  per 
Gibbs,  J. ;  Hannay  v.  Stewart,  6  AVatts, 
487,  489;  Stockton  v.  Demuth,  8  Watts, 
39;  Story  on  Agency,  126,  129,  n.  (2); 
Woods  V.  Banks,  14  N.  H.  101 ;  Cooiey  v. 
Norton,  4  Cush.  93.  In  a  case  of  libel 
for  damages,  occasioned  by  collision  of 
ships,  it  was  held  that  the  admission  of 


142 


LAW   OF  EVIDEN"CE. 


[PAET  n. 


right  to  act  in  the  particular  matter  in  question  has  ceased,  the 
principal  can  no  longer  be  affected  by  his  declarations,  they  being 
mere  hearsay .^ 

§  114.  Declarations  of  agents.  It  is  to  be  observed,  that  the  rule 
admitting  the  declarations  of  the  agent  is  founded  upon  the  legal 
identity  of  the  agent  and  the  principal ;  and  therefore  they  bind 
only  so  far  as  there  is  authority  to  make  them.^    Where  this 


the  master  of  the  ship  proceeded  against 
might  well  be  articulated  in  the  libel. 
The  Manchester,  1  W.  Kob.  62.  But  it 
does  not  appear,  in  the  report,  whether 
the  admission  was  made  at  the  time  of 
the  occurrence  or  not.  [Tiie  declarations 
of  the  master  concerning  the  contract  of 
the  steamer,  are  admissible  in  a  suit 
against  tlie  owners.  The  Enterprise,  2 
Curtis,  C.  C.  317.]  The  question  has 
been  discussed,  whether  tliere  is  any 
substantial  distinction  between  a  written 
entry  and  an  oral  declaration  by  an 
agent,  of  the  fact  of  his  having  received 
a  particular  rent  for  his  employer.  The 
case  was  one  of  a  sub-agent,  employed 
by  a  steward  to  collect  rents,  and  tlie 
declaration  offered  in  evidence  was,  "  M. 
N.  paid  me  the  half-year's  rent,  and  here 
it  is."  Its  admissibility  was  argued,  both 
as  a  declaration  against  interest,  and  also 
as  made  in  the  course  of  discharging  a 
duty  ;  and  the  court  inclined  to  admit  it, 
but  took  time  for  advisement.  Fursdon 
V.  Clogg,  10  M.  &  W.  572  ;  infra,  §  149. 
See  also  Kegina  ;;.  Hall,  8  C!  &  P.  358; 
Allen  V.  Denstone,  Id.  700;  Lawrence  v. 
Thatcher,  6  C.  &  P.  069 ;  Bank  of  Mun- 
roe  V.  Field,  2  Hill,  445 ;  Doe  v.  Hawkins, 
2  Ad.  &  El.  N.  s.  212.  Whether  the  dec- 
laration or  admission  of  tlie  agent  made 
in  regard  to  a  transaction  already  past, 
but  while  his  agency  for  similar  objects 
still  continues,  will  bind  the  principal, 
does  not  appear  to  liave  been  expressly 
decided  ;  but  the  weiglit  of  authority'  is 
in  the  negiUive.  See  the  ol)servations  of 
Tindal,  C.  .!.,  in  Garth  v.  Howard,  supra. 
See  also  Mortimer  v.  McCallan,  6  iSI.  & 
W.  58,  09,  73 ;  Haven  v.  Brown,  7  Greenl. 
421,  424;  Thalhimer  v.  Brinkcrhoff,  4 
Wend.  394  ;  City  Bank  of  Baltimore  i'. 
Bateman,  7  Har.  &  .Johns.  104;  Stewart- 
Bon  V.  Watts,  8  Watts,  392;  Betham  v. 
Benson,  (iow.  45,  48,  n. ;  Baring  v,  Clark, 
19  rick.  220  ;  I'arker  r.  Green,  8  Met. 
142,  143  ;  I'lumer  v.  liriscoe,  12  ,Jur.  .351 ; 
11  Ad.  &  El.  N.  9.  40  (IJurnham  v.  Kills, 
39  Maine,  319.  The  declarations  of  the 
driver  of  a  cow  (Lesley  v.  Hudson  Hiver 
K.  U.  Co.,  17  X.  V.  131),  of  the  conductor 
(Grillin  v.  Montgomery  K.  15.  Co.,  20  Geo. 


Ill),  or  engineer  (Pobinson  v.  Fitchburg 
R.  R.  Co.,  7  Gray  (Mass.),  92)  of  a  rail- 
way  train,  as  to  the  mode  in  which  an 
accident  occurred,  made  after  the  occur- 
rence, are  inadmissible  as  hearsay ;  but 
the  admissions  of  a  like  nature  by  the 
general  agent  or  president  of  a  company 
(Charlestown  R.  R.  Co.  v.  Blake,  12  Rich. 
(S.  C.)  Law,  634),  or  of  a  baggage-master 
in  answer  to  inquiries  for  lost  baggage, 
—  are  admissible,  as  within  the  scope 
of  their  general  duties.  Moore  i'.  Conn. 
River  R.  R.  Co.,  6  Gray  (Mass.),  430.  See 
also  Ins.  Co.  v.  Woodruff,  2  l-)utch.  (N. 
J.)  541,  where  the  admissions  of  an  in- 
surance agent,  made  after  a  loss,  author- 
ized to  receive  premiums  and  deliver 
policies,  as  to  the  delivery  of  a  policy, 
were  held  admissible.  And  see  post, 
§  114,  n.].  Where  tlie  fraudulent  repre- 
sentations of  the  vendor  are  set  up  in 
defence  of  an  action  for  the  price  of 
land,  the  defence  may  be  maintained  by 
proof  of  such  representations  by  the  ven- 
dor's agent  who  effected  the  sale ;  but 
it  is  not  competent  to  inquire  as  to 
his  motives  or  inducements  for  making 
them.  Hammatt  v.  Emerson,  14  Shepl. 
308. 

1  Reynolds  v.  Rowley,  3  Rob.  (La.) 
201  ;  Stiles  v.  The  Western  Railroad  Co., 
8  Met.  44.  [The  declarations  of  a  son 
while  employed  in  performing  a  contract 
for  his  services,  made  by  him  as  agent 
for  his  father,  are  not  admissible  in  evi- 
dence to  prove  the  terms  of  the  contract. 
Corbin  v.  Adams,  0  Cush.  93.  See  Prin- 
tup  V.  Mitchell,  17  Geo.  558;  Covington, 
&c.  R.  R.  (^o.  I'.  Ingles,  15  B.  Mon.  037  ; 
Tuttle  V.  Brown,  4  Gray,  457,  400. J 

2  [Thus  where  the  cashier  of  a  bank, 
being  inquired  of  by  the  surety  upon  a 
note,  said,  that  the  note  had  l)een  paid, 
and  thereupon  the  surety  released  jirop- 
erty  which  he  held  to  indemnify  himself 
for  any  liability  on  the  note,  when  in 
fact  the  note  had  not  been  j)aid,  it  was 
Jielil  that  these  statements  of  the  cashier 
were  not  within  his  authority,  and  were 
inadmissiV)le  against  the  bank.  Bank  v. 
Steward,  37  Maine,  519.  See  also  Runk 
V.  Ten  Eyck,  4  Zabr.  756.] 


CHAP,  v.]  HEAESAY.  143 

authority  is  derived  by  implication  from  authority  to  do  a  certain 
act,  the  declarations  of  the  agent,  to  be  admissible,  must  be  part 
of  the  res  gestce}  An  authority  to  make  an  admission  is  not 
necessarily  to  be  implied  from  an  authority  previously  given  in 
respect  to  the  thing  to  which  the  admission  relates.^  Thus  it  has 
been  held,^  that  the  declarations  of  the  bailee  of  a  bond,  intrusted 
to  him  by  the  defendant,  were  not  admissible  in  proof  of  the  exe- 
cution of  the  bond  by  the  bailor,  nor  of  any  other  agreements 
between  the  plaintiff  and  defendant  respecting  the  subject.  The 
res  gestce  consisted  in  the  fact  of  the  bailment,  and  its  nature ; 
and  on  these  points  only  were  the  declarations  of  the  agent  iden- 
tified with  those  of  the  principal.  As  to  any  other  facts  in  the 
knowledge  of  the  agent,  he  must  be  called  to  testify,  like  any 
other  witness.* 

§  115.  Entries  by  third  persons.  It  is  upon  the  same  ground 
that  certain  entries,  made  hy  third  persons^  are  treated  as  original 
evidence.  Entries  by  third  persons  are  divisible  into  two  classes : 
first,  those  which  are  made  in  the  discharge  of  official  duty,  and 
in  the  course  of  professional  employment;  and,  secondly,  mere 
private  entries.  Of  these  latter  we  shall  hereafter  speak.  In 
regard  to  the  former  class,  the  entry,  to  be  admissible,  must  be 
one  which  it  was  the  person's  duty  to  make,  or  which  belonged 
to  the  transaction  as  part  thereof,  or  which  was  its  usual  and 
proper  concomitant.^  It  must  speak  only  to  that  which  it  was 
his  duty  or  business  to  do,  and  not  to  extraneous  and  foreign 
circumstances.^     The  party  making  it  must  also  have  had  com- 

1  [By  being  part  of  the  res  gestce,  is  thority  of  the  agent,  when  questioned  by 
meant  that  such  declarations  are  evi-  the  principal.  Mussey  v.  Beecher,  3 
dence  only  where  they  relate  to  the  Cush.  517 ;  Brighara  v.  Peters,  1  Gray, 
identical  contract  that  is  the  matter  in  145 ;  Trustees,  &c.  v.  Bledsoe,  5  Ind. 
controversy.     Dome  v.  Southwork  Man.  133.] 

Co.,  11  Cush.  205 ;  Fogg  i\  Child,  13  ^  The  doctrine  on  the  subject  of  con- 
Barb.  246.     And  see  ante,  §  113,  n.]  temporaneous   entries    is  briefl}''  but  lu- 

2  Piiil.  &  Am.  on  Evid.  402.  As  to  the  cidly  expounded  by  Mr.  Justice  Parke, 
evidence  of  authority  inferred  from  cir-  in  Doe  d.  Patteshall  v.  Turford,  3  B.  & 
cumstances,  see  Story  on  Agency,  §  87-  Ad.  890.  See  also  Poole  v.  Dicas,  1  Bing. 
106,  259,  2G0.  (N.  C.)  654  ;  Pickering  v.  Bishop  of  Ely, 

3  Fairlie  r.  Hastings,  10  Ves.  123.  2  Y.  &  C.  249 ;  Regina  ;•.  Worth,  4  Ad.  & 
*  Masters    v.   Abraham,    1    Esp.    375     El.  n.  s.  132.     [Tlie  book  of  minutes  of 

(Day's  ed.),  and  note  (1)  ;  Story  on  a  railroad  company  are  admissible  to 
Agency,  §§  135-143  ;  Johnston  v.  Ward,  prove  what  took  place  at  a  meeting  of 
6  Esp.  47.  [But  the  declarations  of  a  the  stockholders  of  the  company.  Black 
professed  agent,  however  publicly  made,  v.  Lamb,  1  Beasley,  108.  So  are  the 
and  although  accompanied  by  acts,  as  by  records  of  a  hospital,  sliowing  the  condi- 
an  actual  signature  of  the  name  of  the  tion  and  treatment  of  a  patient.  Town- 
principal,  are  not  competent  evidence  in  send  v.  Pepperell,  99  Mass.  40.] 
favor  of  third  persons  to  prove  the  au-         ^  Chambers  v.  Bernasconi,  1  C.  &  J. 


144 


LAW   OF  EVIDENCE. 


[part  n. 


petent  knowledge  of  the  fact,  or  it  must  liave  been  part  of  his 
duty  to  have  known  it  ;  there  must  have  been  no  particuhir 
motive  to  enter  that  transaction  falsely,  more  than  any  other; 
and  the  entry  must  have  been  made  at  or  about  the  time  of  the 
transaction  recorded.  In  such  cases,  the  entry  itself  is  admitted 
as  original  evidence,  being  part  of  the  res  gestce.  The  general 
interest  of  the  party,  in  making  the  entry,  to  show  that  he  has 
done  his  official  duty,  has  nothing  to  do  with  the  question  of  its 
admissibility  ;  ^  nor  is  it  material  whether  he  was  or  was  not  com- 
petent to  testify  personally  in  the  case.^  If  he  is  living,  and 
competent  to  testify,  it  is  deemed  necessary  to  produce  him.^  But, 
if  he  is  called  as  a  witness  to  the  fact,  the  entry  of  it  is  not  thereby 
excluded.  It  is  still  an  independent  and  original  circumstance,  to 
be  weighed  with  others,  whether  it  goes  to  corroborate  or  to  im- 
peach the  testimony  of  the  witness  who  made  it.  If  the  party  who 
made  the  entry  is  dead,  or,  being  called,  has  no  recollection  of  the 
transaction,  but  testifies  to  his  uniform  practice  to  make  all  his 
entries  truly,  and  at  the  time  of  each  transaction,  and  has  no 
doubt  of  the  accuracy  of  the  one  in  question ;  the  entry,  unim- 
peached,  is  considered  sufficient,  as  original  evidence,  and  not 
hearsay,  to  establish  the  fact  in  question.* 


451;  s.  c.  1  Tyrwh.  355;  s.  c.  1  Cr. 
Mees.  &  R.  347.  In  error.  This  limita- 
tion has  not  been  applied  to  private  en- 
trie.?  against  the  interest  of  the  party. 
Thus,  where  the  payee  of  a  note  against 
A.,  B.,  &  C,  indorsed  a  partial  payment 
as  received  from  B.,  adding  that  the 
whole  sum  was  originally  advanced  to  A. 
■  only  ;  in  an  action  by  B.  against  A.,  to 
recover  the  money  thus  paid  for  his  use, 
the  indorsement  made  by  the  payee,  who 
was  dead,  was  held  admissible  to  prove 
not  only  the  payment  of  the  money,  but 
the  otlier  fact  as  to  the  advancement  to 
A.  Davies  v.  Humplireys,  6  Mees.  & 
Welsb.  15:3;  Marks  v.  Lahee,  3  Bing. 
N.  C.  408.  And  in  a  subsequent  case 
it  was  held,  that,  where  an  entry  is  ad- 
mitted as  being  against  tlie  interest  of 
the  party  making  it,  it  carries  with  it  the 
•whole  statement ;  but  that,  if  the  entry- 
is  made  merely  in  tlie  course  of  a  man's 
duty,  then  it  does  not  go  beyond  those 
matters  which  it  was  his  duty  to  enter. 
Percival  v.  Nanson,  7  Kng.  Law  &  Kq. 
638;  21  Law  J.  E.xch.  n.  s.  1 ;  s.  c.  7 
Exch.  \. 

1  Per  Tindal,  C.  J.,  in  Poole  v.  Dicas, 
1  Bing.  N.  f.  i\iA;  Dixon  i-.  Cooper,  3 
Wils.  40  ;  Benjamin  v.  Porteous,  2  H.  Bl. 


590 ;  Williams  v.  Geavos,  8  C.  &  P.  502 ; 
Augusta  V.  Windsor,  1  Applctou,  317, 
And  see  Doe  v.  Wittcomb,  15  Jur.  778. 
[But  if  the  entry  was  not  in  the  course 
of  the  duty  of  the  person,  and  not  against 
bis  interest,  it  is  not  receivable.  Webste 
V.  Webster,  1  F.  &  F.  401 J 

2  Gicadow  i-'.  Atkin,  1  Cromp.  &  Mees. 
423,  424  ;  s.  c.  3  Tyrwh.  302,  303;  Short 
V.  Lee,  2  Jac.  &  Walk.  489. 

8  Nicliols  V.  Webb,  8  Wheat.  326 ; 
Welch  V.  Barrett,  15  Mass.  380 ;  Wilbur 
V.  Selden,  0  Cowen,  162 ;  Farmers'  Bank 
V.  Whitehill,  10  S.  &  R.  89,  90 ;  Stokes  v. 
Stokes,  C  Martin,  n.  s.  351 ;  Herring  v. 
Levy ,  4  Martin,  n.  s.  383;  Brewster  v. 
Doan,  2  Hill,  N.  Y.  537 ;  Davis  v.  Fuller, 
12  Vt.  178. 

•»  Bank  of  Monroe  v.  Culver,  2  Hill, 
531 ;  New  Haven  (^ounty  Bank  v  Mitch- 
ell, 15  Conn.  20tJ ;  Bank  of  Tennessee  v. 
Cowen,  7  Humph.  70.  See  wfrn,  §§  430, 
437,  n.  (4).  [Tlie  protest  of  a  notary- 
public,  authenticated  in  the  usual  way 
i)y  his  signature  and  official  seal,  found 
among  his  ])apers  after  his  deatli,  is  good 
scronddrij  evitlence.  I'orter  r.  Jud.son,  1 
(Jray,  175. |  But  upon  a  (lue.-^tion  of  the 
infancy  of  a  .Jew,  wlicre  tlie  time  of 
his  circumcision,  which  by  custom  is  on 


CHAP.  Y.]  HEAESAY.  145 

§  116.  Entries  by  third  persons.  One  of  the  earliest  reported 
cases,  illustrative  of  this  subject,  was  an  action  of  asstcmpsit,  for 
beer  sold  and  delivered,  the  plaintiff  being  a  brewer.  The  evi- 
dence given  to  charge  the  defendant  was,  that,  in  the  usual  course 
of  the  plaintiff's  business,  the  drayman  came  every  night  to  the 
clerk  of  the  brewhouse,  and  gave  him  an  account  of  the  beer 
delivered  daring  the  day,  which  he  entered  in  a  book  kept  for 
that  purpose,  to  which  the  draymen  set  their  hands;  and  this 
entry,  with  proof  of  the  drayman's  handwriting  and  of  his  death, 
was  held  sufficient  to  maintain  the  action.^  In  another  case,^ 
before  Lord  Kenyon,  which  was  an  action  of  trover  for  a  watch, 
where  the  question  was,  whether  the  defendant  had  delivered  it 
to  a  third  person,  as  the  plaintiff  had  directed ;  an  entry  of  the 
fact  by  the  defendant  himself  in  liis  shop-book,  kept  for  that  pur- 
pose, with  proof  that  such  was  the  usual  mode,  was  held  admissi- 
ble in  evidence.  One  of  the  shopmen  had  sworn  to  the  delivery, 
and  his  entry  was  offered  to  corroborate  his  testimony;  but  it 
was  admitted  as  competent  original  evidence  in  the  cause.  So, 
in  another  case,  where  the  question  was  upon  the  precise  day  of 
a  person's  birth,  the  account-book  of  the  surgeon  who  attended 
his  mother  on  that  occasion,  and  in  which  his  professional  ser- 
vices and  fees  were  charged,  was  held  admissible,  in  proof  of  the 
day  of  the  birth.^     So  where  the  question  was,  whether  a  notice 

the  eighth  day  after  his  birth,  was  pro-  case  any  farther.     Therefore,  where  the 

posed  to  be  shown  by  an  entry  of  tljg  coals  sold  at  a  mine  were  reported  daily 

fact,  made  by  a  deceased  rabbi,  whose  by  one  of  the  workmen  to  the  foreman, 

duty  it  was  to  perform  the  office  and  to  who,  not  being  able  to  write,  employed 

make  the  entry  ;  the  entry  was  held  not  another  person  to  enter  the  sales  in  a 

receivable.   Davis  v.  Lloyd,  1  Car.  &  Kir.  book  ;  it  was  held,  the  foreman  and  the 

275.     Perhaps  because  it  was  not  made  workman   who   reported   the   sale    both 

against  tlie   pecuniary   interest    of    the  being  dead,  that  the  book  was  not  admis- 

rabbi.     [But  it  seems  difficult,  says  Tay-  sible  in   evidence  in   an  action  for  the 

lor  (Evidence,  §  633),  to  reconcile  this  price  of  the  coals.     [Smith  i'.  Blakey,  36 

case  with  sound  principle  or  with  previ-  L.  J.  Q.  B.  136] ;  Brain  v.  Preece,  11_M. 

ous  decisions,  and  it  has  been  lield  in  this  &  W.  773  [Lewis  v.  Kramer,  3  JNId.  265]. 
country  that  the  entry  of  a  baptism  con-  ^  L)igby  v.  Stednian,  1  Esp.  328. 

temporaneously  made  by  a  Roman  Cath-  ^  Higham   i\  Ridgway,  10  East,  109. 

olic  priest,  in  the  discharge  of  his  duty,  See  also  2  Smith's  Lead.  Cas.  183-197,  n., 

is  competent  evidence,  after  his  death,  of  and  the  comments  of  Bayley,  B.,  and  of 

the  date  of  the  baptism,  the  book  being  Vaughan,  B.,  on  tliis  case,  in  Gleadow  v. 

produced  from  the  proper  custody,  al-  Atkin,  1   Cromp.  &  Mees.  -±10,  423,  ■124, 

though  he  was  not  a  sworn  officer,  and  427,  and  of  Professor  Parke,  in  the  Lon- 

the  record  was  not  by  law  required  to  don  Legal  Observer  for  June,  1832,  p.  229. 

be  kept.      Kennedy  v.  Doyle,  10  Allen  It  will  be  seen,  in  tliat  case,  that  the  fact 

'.>(Mass.),  161.]     See' »;//•'(,  §  147.  of  the  surgeon's  performance  of  the  ser- 

y      iJrioR   >'■  Lord   'iorrington,  1    Salk.  vice  charged  was  abundantly  proved  by 

A         285;   s.  c.  2  Ld.  Raym,  873;  1  Smitli's  other  testimony  in  the  cause;  and  that 
VA'.Lead.  Cas.  139.     But  the  courts  are  not  nothing  remained  but  to  prove  the  pre- 
disposed to  carry  the   doctrine   of  this  else  time  of  performance ;  a  fact  in  which 

.  TOL.    I.  IJ 


-M 


146 


LAW   OF  EVIDENCE. 


[part  n. 


to  quit  had  been  served  upon  the  ten*ant,  the  indorsement  of  ser- 
vice upon  a  copy  of  the  notice  by  the  attorney  who  served  it,  it 
being  shown  to  be  the  course  of  business  in  his  office  to  preserve 
copies  of  such  notices,  and  to  indorse  the  service  thereon,  was 
held  admissible  in  proof  of  the  fact  of  service.^  Upon  the  same 
ground  of  the  contemporaneous  character  of  an  entry  made  in  the 
ordinary  course  of  business,  the  books  of  the  messenger  of  a  bank, 
and  of  a  notary-public,  to  prove  a  demand  of  payment  from  the 
maker,  and  notice  to  the  indorser  of  a  promissory  note,  have  also 
been  held  admissible .^  The  letter-book  of  a  merchant,  party  in 
the  cause,  is  also  admitted  os,  prima  facie  evidence  of  the  contents 
of  a  letter  addressed  by  him  to  the  other  party,  after  notice  to 
such  party  to  produce  the  original ;  it  being  the  habit  of  mer- 
chants to  keep  such  a  book.^  And,  generally,  contemporaneous 
entries  made  by  third  persons  in  their  own  books,  in  the  ordinary 
course  of  business,  the  matter  being  within  the  peculiar  knowl- 
edge of  the  party  making  the  entry,  and  there  being  no  apparent 
and  particular  motive  to  pervert  the  fact,  are  received  as  original 
evidence  :  ^  though  the  person  who  made  the  entry  has  no  recol- 


the  surgeon  had  no  sort  of  interest.  But, 
if  It  were  not  so,  it  is  not  perceived  what 
difference  it  could  have  made,  the  prin- 
ciple of  admissibility  being  the  contem- 
poraneous character  of  the  entry,  as  part, 
of  the  rrx  qpstce.  See  also  Herbert  v. 
Tuckal,  T.  Kaym.  84 ;  Augusta  o.  Wind- 
sor, 1  Appleton,  317  [Rawlins  v.  Rich- 
ards, 29  Beav.  370;  Reg.  v.  St.  Mary,  22 
L.  J.  M.  C.  10!)]. 

1  Doe  V.  Turford,  3  Barn.  &  Ad.  890  ; 
Champncys  v.  Peck,  1  Stark.  326  ;  Rex 
V.  Cope,  7  C.  &  P.  720.  [Where  such  an 
indorsement  of  service  had  been  admitted 
to  prove  tlie  fact  of  service  of  notice,  the 
person  wlio  made  the  service  and  the 
indorsement  being  dead,  parol  declara- 
tions of  Ills,  contradicting  the  indorse- 
ment, were  iield  inadmissilde.  Stapjdtou 
t;.  Clough,  22  Eng.  Law  &  Eq.  275.J 

2  Nichols  V.  Webb,  8  Wlieat.  32G ; 
Welch  V.  Barrett,  15  Mass.  380;  Poole  i'. 
Dicas,  1  Bing.  (X.  C.)  049;  lialliday  v. 
Martinett,  20  .Jolms.  108  ;  I'lUtlcr  v. 
Wrii;ht,  2  Wend.  .3(i',> ;  Hart  v.  Williams, 
LI.  013;  Nichols  r.  Goldsmith,  7  Wend. 
IGO;  New  Haven  Co.  Bank  (•.Mitchell. 
15  Conn.  2()0 ;  Sheldon  v.  Benham,  4 
Hill,  N.  V.  123.  [In  an  action  against  an 
infant  for  money  paid  by  tlie  phiintiff  to 
a  third  person  at  tlie  infant's  request,  for 
articles  furnished  the  infant  by  such 
third  person,  the  defence  of  infancy  be- 


ing set  up,  the  books  of  account  and 
the  testimony  of  such  third  person  are 
admissible  to  show  that  the  articles 
furnished  the  infant  were  necessaries. 
Swift  V.  Bennett,  10  Cush.  430,  439.] 

3  Pritt  V.  Eairclough,  3  Campb.  305; 
Hagedorn  v.  Reid,  Id.  377.  The  letter- 
book  is  also  evidence  that  the  letters 
copied  into  it  have  been  sent.  But  it  is 
iiDt  evidence  of  any  other  letters  in  it, 
than  tliose  which  the  adverse  party  has 
been  required  to  produce.  Sturge  i;. 
Buchanan,  2  P.  &  D.  673  ;  %.  c.  10  Ad.  & 
El.  598. 

4  Doe  V.  Turford,  3  B.  &  Ad.  890,  per 
Parke,  J.;  Doe  v.  Robson,  15  East,  32; 
Goss  V.  Watlington,  3  Br.  &  B.  132;  Mid- 
dieton  V.  Melton,  10  B.  &  Cr.  317 ;  Marks' 
V.  Lahce,  3  Bing.  N.  C.  408,  420,  per 
Parke,.!.;  Poole  i\  Dicas,  1  Bing.  N.  C. 
049,  053,  054  ;  Dow  v.  Sawver,  16  Shepl. 
117.  In  Doe  v.  Vowles,  1  M.  &  Rob.  216, 
the  tradesman's  bill,  which  was  rejected, 
was  not  contemporaneous  witii  tlie  fact 
done.  Haddow  v.  Parry,  3  Taunt.  303 ; 
Whitnash  i;.  George,  8  B.  &  Cr.  556; 
Barker  v.  Ray,  2  Russ.  63,  76;  Patton  v. 
Craig,  7  S.  &  R.  HO,  120 ;  Farmers'  Bank 
V.  Wliiteliill,  16  S.  &  R.  89;  Nourse  v. 
IMcCay,  2  Hawle,  70  ;  Clark  v.  Magruder, 
2  II.  &  J.  77;  Richardson  v.  Cary,  2 
Rand.  87  ;  Clark  v.  Wilmot,  1  Y.  &  Col. 
N.  8.  53. 


CHAP,  v.] 


HEAESA.Y. 


147 


lection  of  the  fact  at  the  time  of  testifying ;  provided  he  swears 
that  he  should  not  have  made  it,  if  it  were  not  true.^  The  same 
principle  has  also  been  applied  to  receipts,  and  other  acts  con- 
temporaneous with  the  payment,  or  fact  attested.^ 
/"^  §  117.  Shop-books.  The  admission  of  the  party's  own  shop- 
hooks,  in  proof  of  the  delivery  of  goods  therein  charged,  the 
entries  having  been  made  by  his  clerk,  stands  upon  the  same 
principle  which  we  are  now  considering.  The  books  must  have 
been  kept  for  the  purpose  ;  and  the  entries  must  have  been  made 
contemporaneous  with  the  delivery  of  the  goods,  and  by  the  per- 
son whose  duty  it  was,  for  the  time  being,  to  make  them.  In 
such  cases  the  books  are  held  admissible,  as  evidence  of  the  de- 
livery of  the  goods  therein  charged,  where  the  nature  of  the  sub 
ject  is  such  as  not  to  render  better  evidence  attainable.^ 


1  Bunker  v.  Shed,  8  Met.  150  [Adams 
V.  Coullard,  102  Mass.  167  ;  even  though 
the  entries  appeared  to  have  heen  al- 
tered, the  rule  excluding  instruments  con- 
taining unexplained  alterations  not  being 
applicable  to  such  entries]. 

2  Sherman  v.  Crosby,  11  Johns.  70; 
Holladay  v.  Littlepage,  2  Munf.  316; 
Prather  v.  Johnson,  3  H.  &  J.  487  ;  Sher- 
man V.  Atkins,  4  Pick.  283 ;  Carroll  v. 
Tyler,  2  H.  &  G.  54  ;  Cluggage  v.  Swan, 
4  Binn.  150,  154.  But  the  letter  of  a 
third  person,  acknowledging  the  receipt 
of  merchandise  of  the  plaintiff,  was  re- 
jected, in  an  action  against  the  party 
who  had  recommended  him  as  trust- 
worthy, in  Longenecker  v.  Hyde,  6  Binn. 
1 ;  and  the  receipts  of  living  persons 
were  rejected  in  Warner  v.  Price,  3 
Wend.  397  ;  Cutbush  v.  Gilbert,  4  S.  & 
R.  551 ;  Spargo  v.  Brown,  9  B.  &  C  935. 
See  infra,  §  120. 

3  Pitman  v.  Maddox,  2  Salk.  690; 
s.  c.  Ld.  Raym.  73"i;  Lefebure  v.  Wor- 
den,  2  Ves.  54,  55 ;  Glynn  v.  The  Bank 
of  England,  Id.  40;  Sterret  v.  Bull,  1 
Binn.  234.  See  also  Tait  on  Evid.  p.  276. 
An  interval  of  one  day,  between  the 
transaction  and  the  entry  of  it  in  the 
book,  has  been  deemed  a  valid  objection 
to  the  admiss'bility  of  the  book  in  evi- 
dence. Walter  v.  BoUman,  8  Watts, 
544.  But  the  law  fixes  no  precise  rule 
as  to  the  moment  when  the  entry  ought 
to  be  nijade.  It  is  enough  if  it  be  made 
"  at  or  near  the  time  of  the  transaction." 
Curren  v.  Crawford,  4  S.  &  R.  S,  5. 
Therefore,  where  the  goods  were  deliv- 
ered by  a  servant  during  the  day,  and 
the  entries  were  made  by  the  master  at 
night,  or  on  the  following  morning,  from 


the  memorandums  made  by  the  servant, 
it  was  held  sufficient.  Ingraham  v.  Bock- 
ius,  9  S.  &  R.  285.  But  such  entries, 
made  later  than  the  succeeding  day,  have 
been  rejected.  Cook  v.  Ashraead,  2  Miles, 
268.  Where  daily  memoranda  were  kept 
by  workmen,  but  the  entries  were  made 
by  the  employer  sometimes  on  the  day, 
sometimes  every  two  or  three  days,  and 
one  or  two  at  longer  intervals,  they  were 
admirted.  Morris  v.  Briggs,  3  Cush.  342. 
[See  also  Barker  v.  Haskell,  9  Cush.  218  ; 
Hall  V.  Glidden,  39  Maine,  445.  But  see 
Kent  V.  Garvin,  1  Gray,  148.]  Whether 
entries  transcribed  from  a  slate  or  card 
into  the  book  are  to  be  deemed  original 
entries  is  not  universally  agreed.  In 
Massachusetts,  they  are  admitted.  Faxon 
V.  HoUis,  13  Mass.  427  [Smith  v.  San- 
ford,  12  Pick.  139 ;  Barker  v.  Haskell,  9 
Cush.  218].  In  Pennsijlhrmia,  they  were 
rejected  in  Ogden  v.  Miller,  1  Browne, 
147 ;  but  have  since  been  admitted, 
where  they  were  transcribed  forthwith 
into  the  book,  Ingraham  v.  Bockius,  9 
S.  &  R.  285;  Patton  v.  Ryan,  4  Rawle, 
408 ;  Jones  v.  Long,  3  Watts,  325 ;  and 
not  later,  in  the  case  of  a  mechanic's 
charges  for  his  work,  than  the  evening 
of  the  second  day,  Hartly  v.  Brooks,  6 
Whart.  189.  But  where  several  inter- 
mediate days  elapsed  before  they  were 
thus  transcribed,  the  entries  have  been 
rejected.  Porsythe  v.  Norcross,  5  Watts, 
432.  But  see  Koch  v.  Howell,  6  Watts  & 
Serg.  350.  [Such  entries  are  not  written 
contracts,  but  the  private  memoranda  of 
the  party,  becoming,  with  the  aid  of  his 
suppletory  oath,  under  an  exception  to 
the  general  rules,  competent  evidence 
of  sale  and  delivery.    Although  compe- 


148 


LAW   OF   EVIDENCE. 


[part  n. 


§  118.  Party's  own  entries.  In  the  United  States,  this  principle 
has  been  carried  farther,  and  extended  to  entries  made  h/  the  parti/ 
himself  in  his  own  shop-books.^  Though  this  evidence  has  some- 
times been  said  to  be  admitted  contrary  to  the  rules  of  the  com- 
mon law,  yet  in  general  its  admission  will  be  found  in  perfect 
harmony  with  those  rules,  the  entry  being  admitted  only  where 
it  was  evidently  contemporaneous  with  the  fact,  and  part  of  the 
res  gestce.  Being  the  act  of  the  party  liimself,  it  is  received  with 
greater  caution  ;  but  still  it  may  be  seen  and  weighed  by  the  jury.^ 


tent  and  strong  evidence  as  affecting  the 
party  offering  tliem,  yet  they  are  not  con- 
chisive,  but  may  be  explained,  and,  as  it 
would  seem,  may  be  shown  to  have  been 
erroneous.  Thus,  in  an  action  for  goods 
sold  and  delivered,  if  the  plaintiif,  to 
prove  his  case,  produces  his  books  of 
account,  in  which  the  goods  are  charged 
to  a  third  person,  he  may  then  be  per- 
mitted to  show  by  parol  that  the  goods 
were  not  sold  to  such  third  person,  but 
were  sold  to  the  defendant,  and  were 
charged  to  such  person  at  the  defend- 
ant's request.  James  v.  Spaulding,  4 
Gray,  451.  It  seems  to  have  been  ques- 
tioned whether  the  docket  or  book  of 
accounts  kept  by  an  attorney  is  compe- 
tent evidence,  in  itself,  of  liis  right  to 
recover  for  his  services.  Hale's  Ex'rs, 
V.  Ard's  Ex'rs,  12  Wright,  Pa.  St.  22; 
Briggs  I'.  Georgia,  15  Vt.  61.  In  Maine, 
such  entries  made  by  attorneys  (Codman 
V.  Caldwell,  31  Maine,  660)  and  physicians 
(Augusta  V.  Windsor,  1!)  Maine,  317),  for 
professional  services,  are  admitted.  So, 
likewise  the  latter,  in  New  Jersey  Bay  v. 
Cook,  22  N.  J.  Law,  343;  Toomer  v.  Gads- 
den, 4  Slrob.  (S.  C.)  193.  And  the  party's 
cash-book  of  entries  of  money  paid  anil 
received  is  not  admissible  as  evidence  of 
a  particular  payment.  Maine  v.  Harper, 
4  Allen,  115.  | 

^  In  the  following  States,  the  admis- 
sion of  the  party's  own  books  and  his 
own  entries  has  been  either  expressly 
permitted,  or  recognized  and  regulated 
i)y  statute;  namely,  Vermont,  1  Tolnian's 
Dig.  185;  Connecticut,  Kev.  Code,  1849, 
til.  1,  §  216;  Delaware,  St.  25  Geo.  II., 
Rev.  Code,  1829,  p.  89;  Man/land,  as  to 
gums  under  ten  pounds  in  a  year,  1  I)or- 
sey's  Laws  of  Maryland,  73,  203 ;  Vir- 
,,inia,  Stat.  1819,  1  Rev.  Code,  c.  128, 
§§  7-9;  North  Carolina,  Stat.  1756,  c.  57, 
§'2,  1  Rev.  Code,  1836,  c.  15  ;  South  Car- 
olina, St.  1721,  Sept.  20;  see  Statutes 
at  Large,  vol.  iii.  p.  799,  Cooper's  ed.  1 
Bay,  43 ;  Tennesiee,  Statutes  of  Ten- 
nessee,  by    Carruthers    and    Nicholson, 


p.  131.  In  Louisiana  and  in  Maryland 
(except  as  above),  entries  made  by  the 
partj'  himself  are  not  admitted.  Civil 
Code  of  Louisiana,  Arts.  2244,  2245 ; 
Johnson  v.  Breedlove,  2  Martin,  n.  s. 
508 ;  Herring  v.  Levy,  4  Martin,  n.  s.  383 ; 
Caveher  v.  Collins,  3  Martin,  188;  Mar- 
tinstein  v.  Creditors,  8  Rob.  6 ;  Owings  v. 
Henderson,  5  Gill  &  Joims.  124,  142.  In 
all  the  other  States,  they  are  admitted  at 
common  Iav\,  under  various  degrees  of 
restriction.  See  Coggswell  v.  Dolliver,  2 
Mass.  217  ;  Poultney  i-.  Ross,  1  Dall.  239 ; 
Lynch  v.  McHugo,  1  Bay,  33  ;  Foster  v. 
Sinkler,  Id.  40  ;  Slade  v.  Teasdale,  2  Bay, 
173;  Lamb  )•.  Hart,  Id.  362;  Thomas  v. 
Dyott,  1  Nott  &  McC.  186 ;  Burnham  r. 
Adams,  5  Vt.  313;  Story  on  Cond.  of 
Laws,  526,  527. 

2  The  rules  of  the  several  States  in  re- 
gard to  the  admission  of  this  evidence  are 
not  perfectly  uniform  ;  but,  in  what  is 
about  to  be  stated,  it  is  believed  that  they 
concur.  Before  the  books  of  the  party 
can  be  admitted  in  evidence,  they  are  to 
be  submitted  to  the  inspection  of  tlie 
court,  and  if  tliey  do  not  appear  to  be  a 
register  of  the  diiWy  business  of  tlie  party, 
and  to  have  been  honestly  and  fairly  kept, 
thej'  are  excluded.  If  they  appear  mani- 
festly erased  and  altered,  in  a  material 
part,  tliey  will  not  be  admitted  until  the 
alteration  is  explained.  Churclunan  v. 
Smith,  6  Wliart.  100.  The  form  of  keep- 
ing them,  whether  it  be  tliat  of  a  journal 
or  ledger,  does  not  affect  their  admissibil- 
ity, however  it  may  go  to  their  credit  to 
the  jury.  Coggswell  v.  Dolliver,  2  Mass. 
217;  Prince  v.  Smith,  4  jNIass.  455,  457 ; 
Faxon  u.  Hollis,  13  Mass.  427 ;  Rodman 
V.  Hoops,  1  Dall.  85;  Lynch  v.  McHugo, 
1  Ray,  33;  Foster  i-.  Sinkler,  Id.  40; 
Slade  V.  Teasdale,  2  Bay,  173  ;  Tiiomas  v. 
Dvott,  1  Nott  &  MeC.  186;  Wilson  v. 
Wilson,  1  Halst.  95;  Swing  v.  Sparks,  2 
llalst.  59;  Jones  v.  DeKay,  Pennington, 
695 ;  Cole  v.  Anderson,  3  Halst.  68 ; 
Mathes  v.  Robinson,  8  Met.  269.  [Nor 
can  tlie  entries  be  invalidated  by  proof 


CHAP,  v.] 


HEARSAY. 


149 


§  119.  Same   subject.     But,  if  the  American  rule   of  admit- 
ting  the   party's   own   entries  in  evidence  for  him,  under  the 


that  several  years  previous  to  the  date  of 
the  entries  tlie  party  makina;  the  entries 
had  kept  two  books  of  original  entries,  in 
whicli  he  charged  the  same  articles  at  dif- 
ferent prices.  Gardner  v.  Way,  8  Gray, 
]89.]  If  the  books  appear  free  from 
fraudulent  practices,  and  proper  to  be  laid 
before  the  jury,  the  party  himself  is  then 
required  to  make  oath,  in  open  court, 
that  tlicy  are  the  books  in  which  the 
accounts  of  his  ordinary  business  transac- 
tions are  usually  kept,  Frve  v.  Barker,  2 
Pick.  6-5;  Taylor  v.  Tucker,  1  Kelly, 
233 ;  and  that  the  goods  therein  charged 
were  actually  sold  and  delivered  to,  and 
the  services  actually  performed  for,  the 
defendant.  Dwinel  v.  Pottle,  1  Redingt. 
167.  [And  where  goods  are  delivered  by 
one  partner  and  the  entries  are  made  by 
another,  each  partner  may  testify  to  his 
part  of  the  transaction,  and  the  entries 
niav  then  be  admitted.  Harwood  v. 
Mulry,  8  Gray,  250.]  An  affidavit  to  an 
account,  or  bill  of  particulars,  is  not  ad- 
missible, Wagoner  v.  Richmond,  Wright, 
173 ;  unless  made  so  by  statute.  Whether, 
if  the  party  is  abroad,  or  is  unable  to 
attend,  the  court  will  take  his  oath  under 
a  commission,  is  not  perfectly  clear. 
The  opinion  of  Parker,  C.  J.,  in  2  Pick. 
67,  was  against  it ;  and  so  is  Nicholson  v. 
Witliers,  2  McCord,  428  ;  but  in  Spence  v. 
Saunders,  1  Bay,  119,  even  his  affidavit 
was  deemed  sufficient,  upon  a  writ  of  in- 
quiry, the  defendant  having  suffered  judg- 
ment by  default.  See  also  Douglas  v. 
Hart,  4  McCord,  257  ;  Furman  v.  Peay,  2 
Bail.  394.  He  must  also  swear  that  the 
articles  therein  charged  were  actually  de- 
livered, and  tlie  labor  and  services  actually 
performed ;  that  the  entries  were  made  at 
or  about  the  time  of  the  transactions,  and 
are  the  original  entries  thereof  ;  and  that 
the  suras  charged  and  claimed  have  not 
been  paid.  3  Dane's  Abr.  c.  81,  art.  4, 
§§  1,  2 ;  Coggswell  v.  DoUiver,  2  Mass. 
217  ;  Ives  v.  Niles,  5  Watts,  324.  [As 
neither  an  executor  or  insane  person,  nor 
any  person  not  actually  delivering  the 
articles  sold  or  the  work  performed,  or 
seeing  them  sold  or  the  work  performed, 
can  make  an  oath  to  the  delivery  or  per- 
formance, if  such  an  oath  were  necessary, 
there  might  be  a  failure  of  justice.  The 
principle  of  the  rule  does  not  seem  to 
require  any  such  oath.  If  the  books  are 
tlie  regular  books  of  account,  and  contain 
entries,  customarily  made,  at  the  time  of 
the  delivery,  the  charge  itself  is  evidence 
of  delivery.     It  is  one  step  showing  that 


a  sale  took  place.  It  is  a  record  which 
implies  delivery  and  other  previous  acts.] 
If  the  party  is  dead,  his  books,  though 
rendered  of  much  less  weight  as  evidence, 
may  still  be  offered  by  the  executor  or 
administrator,  he  making  oath  that  they 
came  to  his  liands  as  the  genuine  and 
only  books  of  account  of  the  deceased  ; 
that,  to  the  best  of  his  knowledge  and 
belief,  the  entries  are  original  and  con- 
temporaneous with  the  fact,  and  the  debt 
unpaid  ;  with  proof  of  the  party's  hand- 
writing. Bentley  v.  Hollenback,  Wright, 
169  ;  McLellan  o.  Crof  ton,  0  Greenl.  307  ; 
Prince  v.  Smith,  4  Mass.  4-55 ;  Odell  v. 
Culbert,  9  W.  &  S.  66.  If  the  party  has 
since  become  insane,  the  book  may  still 
be  admitted  in  evidence,  on  proof  of  the 
fact,  and  that  the  entries  are  in  his  hand- 
writing, with  the  suppletory  oath  of  his 
guardian.  And  whether  the  degree  of 
insanity,  in  the  particular  case,  is  such 
as  to  justify  the  admission  of  the  book, 
is  to  be  determined  by  the  judge,  in  his 
discretion.  Holbrook  v.  Gay,  6  Cush. 
215.  The  book  itself  must  be  the  regis- 
try of  business  actually  done,  and  not  of 
orders,  executory  contracts,  and  things 
to  be  done  subsequent  to  the  entry. 
Fairchild  v.  Dennison,  4  Watts,  258 ; 
Wilson  V.  Wilson,  1  Halst.  95 ;  Bradley 
V.  Goodyear,  1  Day,  104,  106 ;  TerriU  v. 
Beecher,  9  Conn.  344,  348,  349;  and  the 
entry  must  have  been  made  for  the  pur- 
pose of  charging  the  debtor  with  the 
debt ;  a  mere  memorandum,  for  an}'  other 
purpose,  not  being  sufficient.  Thus,  an 
invoice-book,  and  the  memorandums  in 
the  margin  of  a  blank  check-book,  show- 
ing the  date  and  tenor  of  the  checks 
drawn  and  cut  from  the  book,  have  been 
rejected.  Cooper  v.  Morrell,  4  Yates, 
341;  Wilson  v.  Goodin,  Wright,  219. 
But  the  time-book  of  a  day-laborer,  though 
kept  in  a  tabular  form,  is  admissible  ;  the 
entries  being  made  for  the  apparent  pur- 
pose of  charging  the  person  for  whom  the 
work  was  done.  Mathes  v.  Robinson,  8 
Met.  269.  [In  an  action  by  a  laborer 
against  his  employer,  the  time-book  of  the 
employer,  kept  in  a  tabular  form,  in  which 
the  days  the  plaintiff  worked  are  set 
down,  is  not  admissible  in  evidence  with 
the  defendant's  suppletory  oath,  to  show 
that  the  plaintiff  did  not  work  on  certain 
days  ;  it  being  a  book  of  credits  and  not 
of  charges,  and  it  not  being  competent  to 
show  that  the  plaintiff  did  not  work  on 
certain  days  by  the  defendant's  omission 
to  give  credit  for  work  on   those   days. 


150 


LAW   OF  EVIDENCE. 


[PAUT  n. 


limitations  mentioned  below,  were  not  in  accordance  with  the 
principles  of  the  common  law,  yet  it  is  in  conformity  with  those 


Morse  v.  Potter,  4  Gray,  202.]  If  the 
book  contains  marks,  or  there  be  other 
evidence  showhig  that  the  items  have 
been  transferred  to  a  journal  or  ledger, 
these  books  also  must  be  produced.  Prince 
V.  Svvctt,  2  Mass.  569.  The  entries,  also, 
must  be  made  contemporaneously  with 
the  fact  entered,  as  has  been  already 
stated  in  regard  to  entries  made  by  a 
clerk.  Supra,  §  117,  and  n.  (1).  Entries 
tiius  made  are  not,  however,  received 
in  all  cases  as  satisfactory  proof  of  the 
charges ;  but  only  as  proof  of  things 
which,  from  their  nature,  are  not  gener- 
ally susceptible  of  better  evidence.  Watts 
V.  Howard,  7  Met.  478.  They  are  satis- 
factory proof  of  goods  sold  and  delivered 
from  a  shop,  and  of  labor  and  services 
personally  performed,  Case  v.  Potter,  8 
Johns.  211 ;  Vosburg  v.  Thayer,  12  Johns. 
2(31 ;  Wilmer  v.  Israel,  1  Browne,  257 ; 
Ducoign  V.  Schreppel,  1  Yeates,  347 ; 
Spence  v.  Saunders,  1  Bay,  119;  Charl- 
ton V.  Lawry,  Martin  (N.  C),  26;  Mitch- 
ell V.  Clark,  Id.  25 ;  Easby  v.  Aiken, 
Cooke,  388  ;  and,  in  some  States,  of  small 
sums  of  money,  Coggsvvell  v.  DoUiver, 
2  Mass.  217  ;  Prince  v.  Smith,  4  Mass. 
455;  3  Dane's  Abr.  c.  81,  art.  4,  §§  1,  2; 
Craven  v.  Shaird,  2  Halst.  345.  [Meals 
furnished  to  an  employer  and  his  ser- 
vants, from  day  to  day,  are  a  proper  sub- 
ject of  book-charge.  Tremain  v.  Edwards, 
7  Cush.  414.  And  see  nho  ante,  §  117,  n.] 
The  amount,  in  Massachusetts  and  Maine, 
is  restricted  to  forty  shillings.  Dunn  v. 
Whitney,  1  Fairf.  9 ;  Burns  v.  Fay,  14 
Pick.  8 ;  Union  Bank  v.  Knapp,  3  Pick. 
lOy.  [Nor  is  the  rule  changed  because 
an  auditor,  at  the  hearing  before  him, 
examined  the  book  as  a  voucher  for  a 
greater  sum.  Turner  v.  Twing,  9  Cush. 
512.]  While  in  North  Carolina  it  is  ex- 
tended to  any  article  or  articles,  the 
amount  whereof  shall  not  exceed  the 
sum  of  sixty  dollars.  Stat.  1837,  c.  15, 
§§  1,5.  [In  New  Jersey  they  are  inad- 
missible to  prove  money  paid  or  money 
lent.  Inslee  v.  Prall,  3  Zabr.  457.]  But 
they  have  been  refused  admission  to 
prove  the  fact  of  advertising  in  a  news- 
paper, Hichards  v.  Howard,  2  Nott  & 
McC  474;  Thomas  v.  Dyott,  1  Nott  & 
.  McC.  180 ;  of  a  charge  of  dockage  of  a 
vessel,  Wilmer  v.  Israel,  1  Browne,  257  ; 
commissions  on  the  sale  of  a  vessel, 
Winsor  v.  Dilloway,  4  Met.  221  [an 
item  in  an  account  "  seven  gold  watches, 
$308,"  Bustin  v.  Rogers,  11  Cush.  340; 
to   whom  credit   was   originally   given, 


delivery  being  admitted ;  Keith  v.  Kibbe, 
10  Cush.  36 ;  the  consideration  of  a  prom- 
issory note,  Rindge  v.  Breck,  10  Cush. 
43;  see  also  Earle  v.  Sawyer,  G  Cush. 
142 ;  three  months'  service  in  one  item, 
Henshaw  v.  Davis,  5  Cush.  145 ;  money 
lost  by  an  agent's  negligence,  Chase 
V.  Spencer,  1  Williams,  412 ;  articles 
temporarily  borrowed,  Scott  v.  Brigham, 
Id.  561 ;  building  a  fence,  Towle  v. 
Blake,  37  Maine,  208 ;  any  matter  col- 
lateral to  the  issue  of  debt  and  credit 
between  the  parties,  Batchelder  v.  San- 
born, 2  Foster,  325]  ;  labor  of  servants, 
Wright  V.  Sharp,  1  Browne,  344 ;  goods 
delivered  to  a  third  person,  Kerr  v.  Love, 
1  Wash.  172  ;  Tenbrook  v.  Johnson,  Coxe, 
288;  Townley  v.  WooUey,  Id.  377 
[Webster  v.  Clark,  10  Foster,  245] ;  or  to 
the  party,  if  under  a  previous  contract  for 
their  delivery  at  different  periods,  Loner- 
gan  I'.  Whitehead,  10  Watts,  249 ;  general 
damages,  or  value.  Swing  v.  Sparks,  2 
Halst.  59  ;  Terrill  v.  Beecher,  9  Conn. 
348,  349 ;  settlement  of  accounts,  Prest 
V.  Mercereau,  4  Halst.  268 ;  money  paid 
and  not  applied  to  the  purpose  directed, 
Bradley  v.  Goodyear,  I  Day,  104 ;  a  spe- 
cial agreement,  Pritchard  v.  McOwen,  1 
Nott  &  McC.  131,  n. ;  Dunn  v.  Whitney, 
1  Fairf.  9 ;  Green  v.  Pratt,  1 1  Conn.  205 ; 
or  a  delivery  of  goods  under  such  agree- 
ment, Nickle  V.  Baldwin,  4  Watts  & 
Serg.  290;  an  article  omitted  by  mistake 
in  a  prior  settlement,  Punderson  v.  Shaw, 
Kirby,  150 ;  the  use  and  occupation 
of  real  estate,  and  the  like,  Beach  v. 
Mills,  5  Conn.  493.  See  also  Newton  v. 
Hig^ins,  2  Vt.  366 ;  Dunn  v.  Whitney, 
1  Fijff.  9.  But  after  the  order  to  deliver 
goods  to  a  third  person  is  proved  by  com- 
petent evidence  aliunde,  the  delivery  itself 
may  be  proved  by  the  books  and  supple- 
tory  oath  of  the  plaintiff,  in  any  case 
where  such  delivery  to  the  defendant  in 
person  might  be  so  proved.  Mitchell  v. 
Belknap,  10  Shcpl.  475.  The  charges, 
moreover,  must  be  specific  and  particular ; 
a  general  charge  for  professional  services, 
or  for  work  and  labor  by  a  mechanic, 
without  any  specification  but  that  of  lime, 
cannot  be  supported  by  this  kind  of  evi- 
dence. Lynch  v.  Petrie,  1  Nott  &  McC. 
130 ;  Hughes  v.  Hampt(jn,  2  Const.  470. 
And  regularly  the  prices  ought  to  be 
specified ;  in  which  case  the  entry  is 
pnwayuciV  evidence  of  the  value,  llaga- 
nian  v.  Case,  1  South.  370 ;  Ducoign  v. 
Schreppel,  1  Yeates,  337.  But  whatever 
be  the  nature  of  the  subject,  the  trausac- 


CHAP,  v.] 


HEARSAY. 


151 


of  other  systems  of  jurisprudence.^  In  the  administration  of  tlie 
Roman  hiw,  the  production  of  a  merchant's  or  tradesman's  book 
of  accounts,  reguhirly  and  fairly  kept  in  the  usual  manner,  has 
been  deemed  presumptive  evidence  {semiplena  prohatio  2)  of  the 
justice  of  his  claim ;  and,  in  such  cases,  the  suppletory  oath  of 
the  party  Q'uramentum  suppletivum)  was  admitted  to  make  up 
the  p>lena  prohatio  necessary  to  a  decree  in  his  favor.^  By  the 
law  of  France,  too,  the  books  of  merchants  and  tradesmen,  regu- 
larly kept  and  written  from  day  to  day,  without  any  blank, 

equity  have  constantly  resorted  to  them 
in  matters  of  account.  Lodge  v.  Pritch- 
ard,  3  l)e  G.  M.  &  G.  908.] 

2  Tliis  degree  of  proof  is  thus  defined 
by  Mascardus  :  "  Non  est  ignorandura, 
probationera  semiplenam  earn  esse,  per 
quam  rei  gestae  ./lofes  aliqna  tit  judici ;  non 
tamen  tanta  ut  jure  debeat  in  pronunci- 
anda  sententia  eam  sequi.  De  Prob.  vol.  i. 
Quaest.  11,  n.  1,  4. 

3  "Juramentjim  (suppletivum)  defer- 
tur  ubicunque  actor  habet  pro  se  — 
aliquas  conjecturas,  per  quas  judex  in- 
ducatur  ad  suspicionem  vel  ad  opinandum 
pro  parte  actoris."  Mascardus,  De  Prob. 
vol.  3,  Concl.  1230,  n.  17.  The  civilians, 
however  they  may  differ  as  to  the  degree 
of  credit  to  be  given  to  books  of  account, 
concur  in  opinion  that  tliey  are  entitled 
to  consideration  at  the  discretion  of  the 
judge.  They  furnish,  at  least,  the  conjee- 
tune  mentioned  by  Mascardus  ;  and  their 
admission  in  evidence,  with  the  suppletory 
oath  of  the  party,  is  thus  defended  by 
Paul  Voet,  De  Statutis,  §  5,  c.  2,  n.  9. 
"  An  ut  credatur  libris  rationem,  seu  re- 
gistris  uti  loquuntur,  mercatorum  et  arti- 
ficum,  licet  probationibus  testium  non 
juventur  ?  Pesponden,  quamvis  exemplo 
pernitiosum  esse  videatur,  quemque  sibi 
privata  testatione,  sive  adnotatione  fa- 
cere  debitorcm.  Quia  tamen  haec  est  mer- 
catorum cura  et  opera,  ut  debiti  et  creditl 
rationes  diligenter  conficiant.  Etiam  in 
eorum  foro  et  causis,  ex  ajquo  et  bono  est 
judicandum.  Insuper  non  admisso  aliquo 
litium  aceelerandarum  remedio,  cominer- 
ciorum  ordo  et  usus  evertitur.  Nequi 
enim  omnes  priesenti  pecunia  merces  sibi 
comparant,  neque  cujusque  rei  venditioni 
testes  adhiberi,  qui  pretia  mercium  nove- 
rint,  aut  expedit,  aut  congruum  est.  Non' 
iniquum  videbitur  illud  statutum,  quo 
domesticis  talibus  instrumentis  additur 
fides,  modo  aliquibus  adminiculis  juven- 
tur." See  also  Hertius,  De  Collisione 
Legum,  §  4,  n.  68;  Strykius,  torn.  7,  De 
8emiplena  Probat.  Disp.  1,  c.  4,  §  5; 
Menochius,  De  Presump.  lib.  2,  Presump. 
67,  n.  20,  and  lib.  3,  Presump.  63,  n.  12. 


tion,  to  be  susceptible  of  this  kind  of 
proof,  must  have  been  directly  between 
the  original  debtor  and  the  creditor ;  the 
book  not  being  admissible  to  establish  a 
collateral  fact.  Mifflin  v.  Bingham,  1 
Dall.  276,  per  McKean,  C.  J. ;  Kerr  v. 
Love,  1  Wash.  172  ;  Deas  v.  Darby,  1 
Nott  &  McC.  436;  Poulteney  v.  Ross,  1 
Dall.  238.  Though  books,  such  as  have 
been  described,  are  admitted  to  be  given 
in  evidence,  with  tlie  suppletory  oath  of 
the  party,  yet  his  testimony  is  still  to  be 
weiglied  by  the  jury,  like  tliat  of  anj' 
other  witness  in  tlie  cause,  and  his  reputa- 
tion for  truth  is  equally  open  to  be  ques- 
tioned. Kitchen  v.  Tyson,  2  Murph.  314 ; 
Elder  v.  VVarfield,  7  Har.  &  Johns.  391. 
In  some  States,  the  books  thus  admitted 
are  only  those  of  shopkeepers,  mechanics, 
and  tradesmen  ;  tliose  of  other  persons, 
such  as  planters,  scriveners,  schoolmas- 
ters, &c.,  being  rejected.  Geter  v.  Martin, 
2  Bay,  173 ;  Pelzer  v.  Cranston,  2  McC. 
328 ;  Boyd  v.  Ladson,  4  McC.  76.  Tlie 
subject  of  the  admission  of  tlie  party's  own 
entries,  with  his  suppletory  oath,  in  the 
several  American  States,  is  very  elabo- 
rately and  fully  treated  in  Mr.  Wallace's 
note  to  the  American  edition  of  Smith's 
Leading  Cases,  vol.  i.  p.  142.  [Where  a 
party's  books  are  admitted,  their  credit 
cannot  be  impeached  by  proof  of  the  bad 
moral  character  of  the  party.  Tomlinson 
V.  Borst,  30  Barb.  42.  It  seems  to  be 
settled,  tliat,  if  the  party  rely  upon  the 
credits  in  his  adversary's  book,  he  must 
take  sucli  admission  in  connection  with 
counter  debits.  Biglovv  v.  Sanders,  22 
Barb.  N.  Y.  147.  But  according  to  the 
English  practice  he  is  not  precluded  from 
introducing  evidence  to  impeach  the 
items  upon  the  debtor  side  of  the  account, 
while  he  claiuis  the  benefit  of  those  upon 
the  credit  side.  Rose  v.  Savory,  2  Bing. 
(N.  C.)  145.  See  also  Moorehouse  v.  New- 
ton, 3  De  G.  &  Sm.  307.] 

1  [As  long  ago  as  1609,  Stat.  7,  James  I. 
c.  V2,  cited  iti  extenso  by  Taylor  (Ev. 
641,  A),  clearly  recognized  tradesmen's 
shop-books  as  evidence,  and  courts  of 


152  LAW   OF  EVIDENCE.  [PAET  II. 

when  the  tradesman  has  the  reputation  of  probity,  constitute  a 
semi-proof,  and  with  his  suppletory  oath  are  received  as  full  proof 
to  establish  his  demand.^  The  same  doctrine  is  familiar  in  the 
law  of  Scotland,  by  which  the  books  of  merchants  and  others, 
kept  with  a  certain  reasonable  degree  of  regularity,  satisfactory 
to  tlie  court,  may  be  recei,ved  in  evidence,  the  party  being  allowed 
to  give  liis  own  oath  "in  supplement"  of  such  imperfect  proof. 
It  seems,  however,  that  a  course  of  dealing,  or  other  "  pregnant 
circumstances,"  must  in  general  be  first  shown  by  evidence  aliunde, 
before  the  proof  can  be  regarded  as  amounting  to  the  degree  of 
semiplena  prohatio,  to  be  rendered  complete  by  the  oath  of  the 
party.2 

§  120.  Entries  by  third  persons.  Returning  now  to  the  admis- 
sion of  entries  made  by  clerks  and  third  persons,  it  may  be  re- 
marked that  in  most  of,  if  not  all,  the  reported  cases,  the  clerk  or 
person  who  made  the  entries  was  dead;  and  the  entries  were 
received  upon  proof  of  his  handwriting.  But  it  is  conceived 
that  the  fact  of  his  death  is  not  material  to  the  admissibility  of 
this  kind  of  evidence.  There  are  two  classes  of  admissible  en- 
tries, between  which  there  is  a  clear  distinction,  in  regard  to  the 
principle  on  Avhich  they  are  received  in  evidence.  The  one  class 
consists  of  entries  made  against  the  interest  of  the  party  making 
them  ;  and  these  derive  their  admissibility  from  this  circumstance 
alone.  It  is,  therefore,  not  material  when  they  were  made.  The 
testimony  of  the  party  who  made  them  would  be  the  best  evi- 
dence of  the  fact ;  but,  if  he  is  dead,  the  eutr}^  of  the  fact  made 
by  him  in  the  ordinary  course  of  his  business,  and  against  his 
interest,  is  received  as  secondary  evidence  in  a  controversy 
between  third  persons.^  The  other  class  of  entries  consists  of 
those  which  constitute  parts  of  a  chain  or  combination  of  transac- 
tions between  the  parties,  the  proof  of  one  raising  a  presumption 
that  another  has  taken  place.  Here,  the  value  of  the  entry,  as 
evidence,  lies  in  this,  that  it  was  contemporaneous  with  the  princi- 

1  1  Potliicron  Obi.,  Part  iv.c.  1,  art.2,  complete  eviilencc."  See  .also  Glassfonl 
.§4.  By  the  Coile  Napoleon,  merchants'  on  Kvi<l.  p.  550;  Bell's  Digest  of  Law*  of 
books  are  required  to  he  kept  in  a  particu-     Scotland,  pp.  378,  8'.)8. 

lar  manner  therein  prescribed,  and  none  ^  Warren  v.  Greenville,  2  Str.  1129; 

others  are  admitted  in  evidence.     Code  de  Middleton   v.   Meltou,   10   B.  &  C.  317; 

Commerce,  Liv.  1,  tit.  2  art.  8-12.  Thompson   i;.    Stevens,  2   Nott  &  McC. 

2  Tait  on  Evidence,  p.  273-277.  This  41)3;  Chase  i;.  Smith,  5  Vt.  656;  Spiers 
degree  of  proof  is  tliere  defineil  as  "  not  v.  Morris,  9  Bing.  687 ;  Alston  v.  Taylor, 
merely  a  suspicion,  but  sucli  evidence  as  1  llayw.  381,  Z'db. 

produces  a  reasonable  belief,  though  not 


CHAP,  v.]  HEARSAY.  l53 

pal  fact  done,  forming  a  link  in  the  chain  of  events,  and  being 
jmrt  of  the  res  gestoe.  It  is  not  merely  the  declaration  of  the 
party,  but  it  is  a  verbal  contemporaneous  act,  belonging,  not 
necessarily  indeed,  but  ordinarily  and  naturally,  to  the  principal 
thing.  It  is  on  this  ground,  that  this  latter  class  of  entries  is 
admitted ;  and  therefore  it  can  make  no  difference,  as  to  thfdr 
admissibility,  whether  the  party  who  made  them  be  living  or 
dead,  nor  whether  he  was,  or  was  not,  interested  in  making  them  ; 
his  interest  going  only  to  affect  the  credibility  or  weight  of  the 
evidence  when  received.^ 

§  121.  Indorsements  of  payment.  The  evidence  of  indebtment, 
afforded  by  the  indorsement  of  the  payment  of  interest,  or  a  par- 
tial payment  of  the  principal,  on  the  back  of  a  bond  or  other  secu- 
rity, seems  to  fall  within  the  principle  we  are  now  considering, 
more  naturally  than  any  other;  though  it  is  generally  classed 
with  entries  made  against  the  interest  of  the  party.  The  main 
fact  to  be  proved  in  the  cases,  where  this  evidence  has  been 
admitted,  was  the  continued  existence  of  the  debt,  notwith- 
standing the  lapse  of  time  since  its  creation  was  such  as  either  to 
raise  the  presumption  of  payment,  or  to  bring  the  case  within  the 
operation  of  the  statute  of  limitations.  This  fact  was  sought  to 
be  proved  by  the  acknowledgment  of  the  debt  by  the  debtor  him- 
self ;  and  this  acknowledgment  was  proved  by  his  having  actually 
paid  part  of  the  money  due.  It  is  the  usual,  ordinary,  and  well- 
known  course  of  business,  that  partial  payments  are  forthwith 
indorsed  on  the  back  of  the  security,  the  indorsement  thus  becom- 
ing part  of  the  res  gestce.  Wherever,  therefore,  an  indorsement 
is  shown  to  have  been  made  at  the  time  it  bears  date  (which  will 
be  inferred  from  its  face,  in  the  absence  of  opposing  circum- 
stances) ,2  the  presumption  natm-ally  arising  is,  that  the  money 
mentioned  in  it  was  paid  at  that  time.  If  the  date  is  at  a  period 
after  the  demand  became  stale,  or  affected  by  the  statute  of  limi- 

1  This  distinction  was  taken  and  clearly  McLean,  492.     In  several  cases,  however, 

expounded  by  Mr.  Justice  Parke  in  Doe  letters  and  receipts  of  third  persons  liv- 

d.  Patteshall  v.  Turford,  3  B.  &  Ad.  890  ;  ing,  and  within  the  reach  of  process,  have 

cited  and  approved   in  Poole  v.  Dicas,  been  rejected.     Longenecker  v.  Hyde,  6 

1  Bing.   N.  C.    654  [Stapylton  v.  Clough,  Binn.  1. ;  Spargo  v.  Brown,  9  B.  &  C.  935  ; 

22  Eng.  Law  &  Eq.  275].     !See  also  supra,  Warner  v.  Price,  3  Wend.  397  ;  Cutbush 

§§  115,  116 ;  Cluggage  v.  Swan,  4  Binn.  v.  Gilbert,  4   S.  &  R.  551  [Reynolds  v. 

lo4;  Sherman  l-.  Crosby,  11  Johns.  70;  Manning,  15  Met.  510]. 

Holladay  v.    Littlepage,   2    Munf.    316 ;  2  Smith  v.  Battens,  1  M.  &  Rob.  341. 

Prather  v.  Johnson,  3  H.  &  J.  487  ;  Sher-  See  also  Nichols  v.  Webb,  8  Wheat.  326; 

man  v.  Akins,  4  Pick.  283 ;  Carroll  v.  Ty-  12  S.  &  R.  49,  87  ;  16  S.  &  R.  89,  91. 
ler,  2  H.  &  G.  54 ;  James  v.  Wharton,  3 


154  LAW   OF  EVEDENCE.  [PABT  H. 

tations,  the  interest  of  tlie  creditor  to  fabricate  it  would  be  so 
strong,  as  to  countervail  the  presumption  of  payment,  and  require 
the  aid  of  some  other  proof ;  and  the  case  would  be  the  same,  if 
the  indorsement  bore  a  date  within  that  period,  the  instrument 
itself  being  otherwise  subject  to  the  bar  arising  from  lapse  of 
time.^  Hence  tlie  inquiry  which  is  usually  made  in  such  cases, 
namely,  whether  the  indorsement,  when  made,  was  against  the 
interest  of  the  party  making  it,  that  is,  of  the  creditor  ;  which,  in 
other  language,  is  only  inquiring  whether  it  was  made  while  his 
remedy  was  not  yet  impaired  by  lapse  of  time.  The  time  when 
the  indorsement  was  made  is  a  fact  to  be  settled  by  the  jury ; 
and  to  this  end  the  writing  must  be  laid  before  them.  If  there 
is  no  evidence  to  the  contrary,  the  presumption  is  that  the 
indorsement  was  made  at  the  time  it  purports  to  bear  date  ;  and 
the  burden  of  proving  the  date  to  be  false  lies  on  the  other  party .^ 
If  the  indorsement  does  not  purport  to  be  made  contemporane- 
ously with  the  receipt  of  the  money,  it  is  inadmissible  as  part  of 
the  res  gestce. 

§  122.  Same  subject.  This  doctrine  has  been  very  much  con- 
sidered in  the  discussions  which  have  repeatedly  been  had  upon 
the  case  of  Searle  v.  Barrington.^  In  that  case,  the  bond  was 
given  in  1697,  and  was  not  sued  until  after  the  death  of  the 
obligee,  upon  whose  estate  administration  was  granted  in  1723. 
The  obligor  died  in  1710 ;  the  obligee  probably  survived  him, 
but  it  did  not  appear  how  long.  To  repel  the  presumption  of 
payment,  arising  from  lapse  of  time,  the  plaintiff  offered  in  evi- 
dence two  indorsements,  made  upon  the  bond  by  the  obligee  him- 
self, bearing  date  in  1699  and  in  1707,  and  purporting  that  the 

1  Turner  v.  Crisp,  2  Stra.  827  ;  Rose  v.  plaintiff;  but,  on  a  motion  to  set  tlie  non- 
Bryant,  2  Campl).  321;  Glynn  v.  The  suit  aside,  the  three  other  judges  were  of 
Bank  of  England,  2  Ves.  38,  43.  See  opinion  tiuit  the  evidence  ought  to  have 
also  Whitney  v.  Bigelow,  4  Pick.  110;  been  left  to  the  jury,  the  indorsement  in 
Roseboom  v.  Billington,  17  Johns.  182;  such  cases  being  according  to  the  usual 
Gibson  V.  Peebles,  2  McCord,  418.  course  of  business,  and  perhaps  in  tiiis 

^  Per  Taunton,  J.,  in  Smith  v.  Battens,  case  made  with  the  privity  of  the  obligor ; 

1    M.    &   Rob.   .')4o.      See   also   Hunt   v.  but  on  anotiier  ground  the   motion  was 

Masscy,  5  B.  &  Adolph.  002;   Baker  v.  denied.     Afterwards  another  action  was 

Milburn,  2  Mees.  &   \V.  853 ;  Sinclair  v.  brought,  which   was   tried   before    Lord 

Bapgaley,  4  Mees.  &  W.  812;  Anderson  Rayniond,  C.  J.,  who  admitted  the  evi- 

V.  Weston,  0  Bing.    N.  C.    206.  dince  of  the  indorsement;  but  to  which 

3  There  were  two  successive  actions  tlie  defendant  tiled  a  bill  of  exceptions. 

on  the  same  bond  between  these  parties.  Tiiis  judgment  was  affirmed  on  error  in 

The  first  is  reported  in  2  Stra.  82G,  8  Mod.  the  Exchequer  Chamber,  and  again  in  the 

278,    and   2    Ld.  Raym.    1370;   and  was  House  of  Lords.     See  2  Stra.  827 ;  3  Bro. 

tried  before  Pratt,  0.  J.,  who  refused  to  V.  C.  5('3.     The  first  case  is  most  fully 

admit  the  indorsement,  and  nonsuited  the  reported  in  8  Mod.  278 


CHAP,  v.]  HEAESAY.  'ISS 

interest  clue  at  those  respective  dates  had  been  then  paid  by  the 
obligor.  And  it  appears  that  other  evidence  was  also  offered, 
showing  the  time  when  the  indorsements  were  actually  made.^ 
The  indorsements,  thus  proved  to  have  been  made  at  the  times 
when  they  purported  to  have  been  made,  were,  upon  solemn 
argument,  held  admissible  evidence,*  both  by  the  judges  in  the 
Exchequer  Chamber  and  by  the  House  of  Lords.  The  grounds 
of  these  decisions  are  not  stated  in  any  of  the  reports :  but  it 
may  be  presumed  that  the  reasoning  on  the  side  of  the  prevaihng 
party  was  approved,  namely,  that  the  indorsement  being  made 
at  the  time  it  purported  to  bear  date,  and  being  according  to  the 
usual  and  ordinary  course  of  business  in  such  cases,  and  which  it 
was  not  for  the  interest  of  the  obhgee  at  that  time  to  make,  was 
entitled  to  be  considered  by  the  jury ;  and  that  from  it,  in  the 
absence  of  opposing  proof,  the  fact  of  actual  'payment  of  the 
interest  might  be  inferred.  This  doctrine  has  been  recognized 
and  confirmed  by  subsequent  decisions.^ 

§  123.  Summary.  Thus,  we  have  seen  that  there  are  four 
classes  of  declaratio7is,  which,  though  usually  treated  under  the 
head  of  hearsay,  are  in  truth  original  evidence ;  the  first  class 
consisting  of  cases  where  the  fact,  that  the  declaration  was  made, 
and  not  its  truth  or  falsity,  is  the  point  in  question  ;  the  second, 
including  expressi6ns  of  bodily  or  mental  feelings,  where  the 
existence  or  nature  of  such  feelings  is  the  subject  of  inquiry ;  the 
third,  consisting  of  cases  of  pedigree,  and  including  the  declara- 
tions of  those  nearly  related  to  the  party  whose  pedigree  is  in 
question ;  and  the  fourth,  embracing  all  other  cases  where  the 
declaration  offered  in  evidence  may  be  regarded  as  part  of  the 

1  This  fact  was  stated  by  Baylcy,  B.,  on  behalf  of  the  creditor,  shall  be  deemed 

as  the  result  of  his  own  research.     See  1  sufficient  proof  to  take  tlie  case  out  of  the 

Cromp.  &  Mees.  421.     So  it  was  under-  statute  of  limitations.     Tlie  same  enact- 

stood  to  be,  and  so  stated,  by  Lord  Hard-  ment  is  found  in  the  laws  of  some  of  the 

wicke,  in  2  Ves.  43.     It  may  have  consti-  United  States. 

tuted  the" othercircumstantial evidence,"  ^  Bosworth  v.  Cotchett,  Dom.  Proc. 

mentioned  in  Mr.  Brown's  report,  3  Bro.  May  6,  1«24 ;  Phil.  &  Am.  on  Evid.  348; 

P.  C.  594 ;  which  he  literally  transcribed  Gleadow   v.   Atkin,    1    Cromp.  &    Mees. 

from  the  case,  as  drawn  up  by  Messrs.  410;  Anderson  y.  Weston,  6  Bing.    N.   C. 

Lutwyche  and  Faziikerley,  of  council  for  296 ;    2   Smith's    Lead.    Cas.   197 ;    Ad- 

the  original  plaintiff,  for  argument  in  the  dams  v.  Seitzinger,  1  Watts  &  Serg.  243. 

House  of  Lords.     See  a  folio  volume  of  [But  the  admission  of  a  payment  at  the 

original  printed  briefs,  marked  "  Cases  in  time  a  note  fell  due,  although  signed  by 

Parliament,  1728  to  1731,"  p.  529,  in  the  both  parties  and  indorsed  upon  the  note  at 

Law  Library  of  Harvard  University,  in  a  period  within  the  statute  of  limitations, 

which  this  case  is  stated  more  at  large  will  not  have  the  effect  to  remove  the  bar, 

than  in  any  book  of  Reports.     By  Stat.  9  the  effect  being  the  same  only  as  if  made 

Geo.  IV.  c.  14,  it  is  enacted,  that  no  in-  at  the  time  the  admitted  payment  waa 

dorsement  of  partial  payment,  made  by  or  made.    Hayes  v.  Morse,  8  Vt.  316. J 


156  LAW   OF  EVIDENCE.  [PART  H. 

res  gestoe.  All  these  classes  are  involved  in  the  principle  of 
the  last ;  and  have  been  separately  treated,  merely  for  the  sake 
of  greater  distinctness. 

§  124.  Principle  of  the  rule  of  exclusion  of  hearsay  evidence. 
Subject  to  these  qualifications  and  seeming  exceptions,  the  general 
rule  of  law  rejects  all  hearsay  reports  of  transactions,  whether 
verbal  or  written,  given  by  persons  not  produced  as  witnesses.^ 
The  principle  of  this  rule  is,  that  such  evidence  requires  credit  to 
be  given  to  a  statement  made  by  a  person  who  is  not  subjected 
to  the  ordinary  tests  enjoined  by  the  law  for  ascertaining  the 
correctness  and  completeness  of  his  testimony ;  namely,  that  oral 
testimony  should  be  delivered  in  the  presence  of  the  court  or  a 
magistrate,  under  the  moral  and  legal  sanctions  of  an  oath,  and 
where  the  moral  and  intellectual  character,  the  motives  and 
deportment  of  the  witness  can  be  examined,  and  his  capacity 
and  opportunities  for  observation,  and  his  memory,  can  be  tested 
by  a  cross-examination.  Such  evidence,  moreover,  as  to  oral 
declarations,  is  very  liable  to  be  fallacious,  and  its  value  is,  there- 
fore, greatly  lessened  by  the  probability  that  the  declaration  was 
imperfectly  heard,  or  was  misunderstood,  or  is  not  accurately 
remembered,  or  has  been  perverted.  It  is  also  to  be  observed, 
that  the  persons  communicating  such  evidence  are  not  exposed 
to  the  danger  of  a  prosecution  for  perjury,  in  which  sometliing 
more  than  the  testimony  of  one  witness  is  necessary,  in  order  to 
a  conviction ;  for  where  the  declaration  or  statement  is  sworn  to 
have  been  made  when  no  third  person  was  present,  or  by  a  per- 
son who  is  since  dead,  it  is  hardly  possible  to  punish  the  witness, 
even  if  his  testimony  is  an  entire  fabrication.^  To  these  reasons 
may  be  added  considerations  of  public  interest  and  convenience 
for  rejecting  hearsay  evidence.  The  greatly  increased  expense 
and  the  vexation  which  the  adverse  party  must  incur  in  order  to 
rebut  or  explain  it,  the  vast  consumption  of  public  time  tliereby 
occasioned,  the  multiplication  of  collateral  issues  for  decision  by 
the  jury,  and  the  danger  of  losing  sight  of  the  main  question  and 

1  "If,"  says  Mr.  Justice  Buller,  "  the  205,206.     Sce,a8  to  tlielialjilityof  words 

first  speech  were  without  oath,  another  to  misconstruction,  tlie  remari<s  of  Mr. 

oath,  that  there  wassucii  speech,  makes  it  Justice  Foster,  in  his  Discourse  on  High 

no  more  tlian  a  bare  speaking,  ami  so  of  Treason,  c.  1,  §  7.     The  rule  excluding 

no  VJilue  in  a  court  of  justice."     Bull.  N.  hearsay  is  not  of  great  antiquity.     One  of 

P.  294  [Lund  v.  Tyngsborough,  9  Cush.  the  earliest  cases  in  which  it  was  adminis- 

36,  401.  tered,  was  that  of  Sampson  i'.  Yardley 

2riiil.&Am.onETid.2l7;  IPhil.Evid.  and  Tothill,  2  Keb.  223,  pi.  74,  19  Car.  2. 


CHAP,  v.]   ,-  HEARSAY.  157 

of  the  justice  of  the  case  if  this  sort  of  proof  were  admitted,  are 
considerations  of  too  grave  a  character  to  be  overlooked  by  the 
court  or  the  legislature,  in  determining  the  question  of  changing 
the  rule.^ 

§  125.  Declarations  under  oath.  The  rule  applies,  though  the 
declaration  offered  in  evidence  was  made  upon  oath,  and  in  tlie 
course  of  a  judicial  proceeding,  if  the  litigating  parties  are  not 
the  same.  Thus,  the  deposition  of  a  pauper,  as  to  the  place  of 
his  settlement,  taken  ex  parte  before  a  magistrate,  was  rejected, 
though  the  pauper  himself  had  since  absconded,  and  was  not  to 
be  found.2  The  rule  also  applies,  notwithstanding  no  better  evi- 
dence is  to  be  found,  and  though  it  is  certain,  that,  if  the  declara- 
tion offered  is  rejected,  no  other  evidence  can  possibly  be  obtained  ; 
as,  for  example,  if  it  purports  to  be  the  declaration  of  the  only 
eye-witness  of  the  transaction,  and  he  is  since  dead.^ 

§  126.  Exception.  An  exception  to  this  rule  has  been  con- 
tended for  in  the  admission  of  the  declarations  of  a  deceased  attest- 
ing toitness  to  a  deed  or  will,  in  disparagement  of  the  evidence 
afforded  by  his  signature.  This  exception  has  been  asserted,  on 
two  grounds :  first,  that  as  the  party  offering  the  deed  used  the 
declaration  of  the  witness,  evidenced  by  his  signature,  to  prove 
the  execution,  the  other  party  might  well  be  permitted  to  use  any 
other  declaration  of  the  same  witness  to  disprove  it ;  and,  secondly^ 
that  such  declaration  was  in  the  nature  of  a  substitute  for  the  loss 
of  the  benefit  of  a  cross-examination  of  the  attesting  witness  ;  by 
which,  either  the  fact  confessed  would  have  been  proved,  or  the 
witness  might  have  been  contradicted,  and  his  credit  impeached. 
Both  these  grounds  were  fully  considered  in  a  case  in  the  ex- 
chequer, and  were  overruled  by  the  court :  the  first,  because  the 
evidence  of  the  handwriting,  in  the  attestation,  is  not  used  as  a 

1  Mima  Queen  i'.  Hepburn,  7  Cranch,  ness  at  second-hand,  and  through  several 
290,  296,  per  Marshall,  C.  J.  successive  relators,  each  only  stating  what 

2  Rex  V.  Nuneham  Courtney,  1  East,  he  received  from  an  intermediate  relator, 
373 ;  Rex  v.  Ferry  Frystone,  2"East,  54 ;  it  is  still  admissible,  if  the  original  and  in- 
Rex  V.  Eriswell,  3  T.  R.  707-725,  per  termediate  relators  are  all  dead,  and  would 
Lord  Kenyon,  C.  J.,  and  Grose,  J.,  whose  have  been  competent  witnesses  if  livmg, 
opinions  are  approved  and  adopted  in  Tait  on  Evid.  pp.  430,  431.  But  the  rea- 
Mima  Queen  v.  Hepburn,  7  Cranch,  296.  son   for   receiving   hearsay  evidence,  in 

8  Phil.  &  Am.  on  Evid.  220, 221 ;  IPhil.  cases  where,  as  is  generally  tlie  case  in 

Evid.  209,  210.     In  Scotland  the  rule  is  Scotland,  the  judges  determine  upon  the 

otherwise ;  evidence  on  the  relation  of  facts  in  dispute,  as  well  as  upon  the  law, 

others  being  admitted,  where  the  relator  is  stated   and  vindicated  by  Sir  James 

is  since  dead,  and  would,  if  living,  have  Mansfield,  in  the  Berkley  Peerage  case, 

been  a  competent  witness.     And  if  the  re-  4  Campb.  415. 
lation  has  been  handed  down  to  the  wit- 


158 


LAW   OF  EVIDElSrCE. 


[PAUT  n. 


declaration  by  tlie  witness,  but  is  offered  merely  to  show  the  fact 
that  he  put  his  name  there,  in  the  manner  in  wliich  attestations 
are  usually  placed  to  genuine  signatures ;  and  the  second,  chiefly 
because  of  the  mischiefs  which  would  ensue,  if  the  general  rule 
excluding  hearsay  were  thus  broken  in  upon.  For  the  security 
of  solemn  instruments  would  thereby  become  much  impaired,  and 
the  rights  of  parties  under  them  would  be  liable  to  be  affected  at 
remote  periods,  by  loose  declarations  of  the  attesting  witnesses, 
which  coidd  neither  be  explained  nor  contradicted  by  the  testi- 
mony of  the  witnesses  themselves.  In  admitting  such  declara- 
tions, too,  there  would  be  no  reciprocity ;  for,  though  the  party 
impeaching  the  instrument  would  thereby  have  an  equivalent  for 
the  loss  of  his  power  of  cross-examination  of  the  living  witness, 
the  other  party  would  have  none  for  the  loss  of  his  power  of  re- 
examination.^ 


1  Stobartw.Dryden,!  Mees.  &W.615. 
[But  the  doctrine  of  tliis  ease  has  been 
denied,  and  it  has  been  held,  that,  on  the 
production  of  a  certified  copy  of  a  will 
and  of  the  affidavit  of  the  subscribing 
witnesses  made  at  the  time  of  probate, 
it  is  permissible  to  impeach  the  affidavit 
of  one  of  the  witnesses  by  showing  con- 


tradictory statements  made  at  other  times, 
with  a  view  to  show  that  the  will  was 
never  duly  executed.  Otterson  v.  Hofford, 
36  N.J.  129;  TheReformed  Dutch  Church 
V.  Ten  Eyck,  1  Dutch.  (N.  J.)  40.  So  the 
bad  character  of  the  subscribing  witness 
may  be  shown  for  the  same  purpose. 
Losse  V.  Losse,  2  Hill,  N.  Y.  609.] 


CHAP.  VI.]  JIATTEES   OF  GENERAL  INTEREST.  lo9 


CHAPTER  VI. 

OF  MATTERS   OF  PUBLIC  AND   GENERAL  INTEREST. 

§  127.  "When  hearsay  admissible.  Having  thus  illustrated  the 
nature  of  hearsay  evidence,  and  shown  the  reasons  on  which  it  is 
generally  excluded,  we  are  now  to  consider  the  cases  in  tohich 
this  rule  has  been  relaxed,  and  hearsay  admitted.  The  exceptions, 
thus  allowed,  will  be  found  to  embrace  most  of  the  points  of  in- 
convenience, resulting  from  a  stern  and  universal  application  of 
the  rule,  and  to  remove  the  principal  objections  which  have  been 
urged  against  it.  These  exceptions  may  be  conveniently  divided 
into  four  classes :  first,  those  relating  to  matters  of  public  and 
general  interest ;  secoyidly,  those  relating  to  ancient  possessions ; 
thirdly,  declarations  against  interest;  fourthly,  dying  declara- 
tions, and  some  others  of  a  miscellaneous  nature ;  and  in  this 
order  it  is  proposed  to  consider  them.  It  is,  however,  to  be 
observed,  that  these  exceptions  are  allowed  only  on  the  ground 
of  the  absence  of  better  evidence,  and  from  the  nature  and  neces- 
sity of  the  case. 

§  128.  Matters  of  general  interest.  And  first,  as  to  matters  of 
public  and  general  interest.  The  terms  public  and  general  are 
sometimes  used  as  synonymous,  meaning  merely  that  which  con- 
cerns a  multitude  of  persons.^  But,  in  regard  to  the  admissibility 
of  hearsay  testimony,  a  distinction  has  been  taken  between  them  ; 
the  term  public  being  strictly  applied  to  that  wliich  concerns  all 
the  citizens,  and  every  member  of  the  State  ;  and  the  term  general 
being  referred  to  a  lesser,  though  still  a  large,  portion  of  the  com- 
munity. In  matters  of  public  interest,  all  persons  must  be  pre- 
sumed conversant,  on  the  principle  that  individuals  are  presumed 
to  be  conversant  in  their  own  affairs ;  and,  as  common  rights  are 
naturally  talked  of  in  the  community,  what  is  thus  dropped  in 
conversation  may  be  presumed  to  be  true.^    It  is  the  prevailing 

1  "Weeks  u.  Sparke,  1  M.  &  S.  690,  per  &  S.  686,  per  Ld.  Ellenborough  ;  The 
Bayley,  J.  Berkley   Peerage   case,  4   Campb.   416. 

2  Morewood  v.  Wood,  14  East,  320,  n.,  per  Mansfield,  C.  J. 
per  Ld.  Kenyon  j  Weeks  v.  Sparke,  1  M. 


160  LAW   OF  EVIDENCE.  [PAKT  11. 

ciiiTent  of  assertion  that  is  resorted  to  as  evidence,  for  it  is  to 
this  that  every  member  of  the  community  is  supposed  to  be  privy, 
and  to  contribute  his  share.  Evidence  of  common  reputation  is, 
therefore,  received  in  regard  to  public  facts  (a  chxim  of  highway, 
or  a  right  of  ferrj^,  for  example),  on  ground  somewhat  similar  to 
that  on  Avhich  public  documents,  not  judicial,  are  admitted  ; 
namely,  the  interest  which  all  have  in  their  truth,  and  the  con- 
sequent probability  that  they  are  true.^  In  these  matters,  in 
which  all  are  concerned,  reputation  from  any  one  appears  to  be 
receivable  ;  but  of  course  it  is  almost  worthless,  unless  it  comes 
from  persons  who  are  shown  to  have  some  means  of  knowledge ; 
such  as,  in  the  case  of  a  highway,  by  living  in  the  neighborhood : 
but  the  want  of  such  proof  of  their  connection  with  the  suliject 
in  question  affects  the  value  only,  and  not  the  admissibility,  of  the 
evidence.  On  the  contrary,  where  the  fact  in  controversy  is  one 
in  which  all  the  members  of  the  community  have  not  an  interest, 
but  those  only  who  live  in  a  particular  district,  or  adventure  in 
a  particular  enterprise,  or  the  like,  hearsay  from  persons  wholly 
unconnected  with  the  place  or  business  would  not  only  be  of  no 
value,  but  altogether  inadmissible.^ 

§  129.  Rights  of  common.  Thus,  in  an  action  of  trespass  qiiare 
dausum  fregit^  where  the  defendant  pleaded  in  bar  a  prescriptive 
right  of  common  in  the  locus  in  quo,  and  the  plaintiff  replied, 
prescribing  the  right  of  his  messuage  to  use  the  same  ground  for 
tillage  with  corn  until  the  harvest  was  ended,  traversing  the 
defendant's  prescription  ;  it  appearing  that  many  persons  beside 
the  defendant  had  a  right  of  common  there,  evidence  of  reputa- 
tion, as  to  the  plaintiff's  right,  was  held  admissible,  provided  it 
were  derived  from  persons  conversant  with  the  neighborhood.^ 

1  1  Stfirk.  Evid.  105;  Price  r.  CurrcU,  was  licld  suflicicnt  plena  prohatio,  wlior- 
6  M.  &  W.  234.  And  see  Kojes  v.  White,  ever,  from  the  nature  of  the  case,  better 
19  Conn.  250.  evidence  was  not  attainable  :  "  ulii  a  coni- 

2  Crease  v.  Barrett,  1  Cromp.  Mees.  &  niuniter  aecidentibus,  probatio  ditlicilis 
Rose.  920,  per  Parke,  B.  [Persons  living  est,  fania  pleiiam  sohH  probationeni  fa- 
out  of  sucli  district  are  not  presumed  to  cere  ;  ut  in  ])robatione  filiationis."  But 
know  siicli  fact,  and  cannot  therefore  be  Mascardus  deems  it  not  sufticient,  incases 
affected  by  proof  of  it.  Dunbar  i'.  Muh-y,  of  peiliijree  within  the  memory  of  man, 
8  Gray,  1(33]  By  the  Roman  law,  repu-  which  he  limits  to  fifty-six  years,  unless 
tatitm  or  common  fame  seems  to  have  aided  by  other  evidence,  "tunc  nempe 
l)een  admissible  in  evidence,  in  all  cases  ;  non  sufRceret  publica  vox  et  fama,  seJ 
but  it  was  not  generally  deemed  sufli-  una  cum  ipsa  deberet  tractatus  et  nomi- 
cicnt  proof,  and,  in  some  cases,  not  even  natio  probari  vel  alia  adminicula  urgentia 
semiphna  prohdtio,  unless  corroborated :  adhiberi."  Mascard.  De  Prob.  vol.  i. 
"  nisi  aliis  adminiculis  adjuvetur."    Mas-  Concl.  411,  n.  1.  2,  0,  7. 

cardus,  De  Prob.  vol.  i.  Concl.  171,  n.  1  ;  »  Weeks  v.  Sparke,  1  M.  &  S.  679,  C88, 

Coucl.  183,  n.  2 ;  Concl.  547,  n.  149.     It     per    Le    Blanc,  J.     [Ld.    Dunraven    v. 


CHAP.  VT.]  MATTERS   OF   GENERAL   ESTTEREST.  161 

But  where  tlie  question  was,  whether  the  city  of  Chester  anciently 
formed  part  of  the  county  Palatine,'  an  ancient  document,  pur- 
porting to  be  a  decree  of  certain  law  officers  and  dignitaries  of 
the  crown,  not  having  authority  as  a  court,  was  held  inadmissihle 
evidence  on  the  ground  of  reputation,  they  having,  from  their 
situations,  no  peculiar  knowledge  of  the  fact.^  And,  on  the  other 
hand,  where  the  question  was,  whether  Nottingham  Castle  was 
witliin  the  hundred  of  Broxtowe,  certain  ancient  orders,  made  by 
the  justices  at  the  quarter-sessions  for  the  county,  in  which  the 
castle  was  described  as  being  Avithin  that  hundred,  were  held  ad- 
missible evidence  of  reputation  ;  the  justices,  though  not  proved 
to  be  residents  within  the  county  or  hundred,  being  presumed, 
from  the  nature  and  character  of  their  offices  alone,  to  have  suffi- 
cient acquaintance  with  the  subject  to  which  their  declarations 
related.2  Thus  it  appears  that  competent  knowledge  in  the  dec- 
larant is,  in  all  cases,  an  essential  prerequisite  to  the  admission  of 
his  testimony ;  and  that  though  all  the  citizens  are  presumed  to 
have  that  knowledge,  in  some  degree,  where  the  matter  is  of 
public  concernment,  yet,  in  other  matters,  of  interest  to  many 
persons,  some  particular  evidence  of  such  knowledge  is  required. 
§  180.  Rights  must  be  ancient  and  declarants  dead.  It  is  to  be 
observed,  that  the  exception  we  are  now  considering  is  admitted 
only  in  the  case  of  aficient  riglits,  and  in  respect  to  the  declara- 
tions of  persons  supposed  to  he  dead.^  It  is  required  by  the  nature 
of  the  rights  in  question ;  their  origin  being  generally  antecedent 
to  the  time  of  legal  memory,  and  incapable  of  direct  proof  by 
living  witnesses,  both  from  this  fact,  and  also  from  the  undefined 
generality  of  their  nature.  It  has  been  held,  that,  where  the 
nature  of  the  case  admits  it,  a  foundation  for  the  reception  of 
hearsay  evidence,  in  matters  of  public  and  general  interest,  should 
first  be  laid  by  proving  acts  of  enjoyment  within  the  period  of 

Llewellyn,    15   Q.   B.   809;    Warrick   v.  quality  of  the  hearsay  evidence  raises  a 

Queen's  College,  40  L.  J.  C.  785].     The  natural  inference  that  it  was  derived  from 

actual  disscussion  of  the  subject  in  the  persons  acquainted  with  the  subject,  tlie 

neighborhood  was  a  fact  also  relied  on  courts  will  not  require  independent  proof 

in  the  Roman  law,  in  cases  of  proof  by  of  that  fact.     Freeman  v.  Phillipps,  4  M. 

common    fame.      "  Quando    testis    vult  &  S.  486.] 

probare   aliqucm    scivisse,   non    vidctur  i  Rogers  v.  Wood,  2  Barn.  &  Ad.  24.j. 

sufficere,  quod  dicat  ille  scivit  quia  erat  2  Duke  of  Newcastle  v.  Broxtowe,  4 

vicinus;  sed  debet  addere,  in  vicinia  hoc  Barn.  &  Ad.  "iTo.      _  •  .      -o 

erat  cognitum  per  famam,  vel  alio  modo  ;  •*  Moseley  v.  Uavies,  11  Price,  162  ;  Re- 

et  ideo  iste,  qui  erat  vicinus,  potuit  id  gina  v.  Milton,  1  Car.  &  Kir.  58;  Davis r. 

scire*."    J.  Menochius,  De  Prresump.  torn.  Fuller,  12  Vt.  178. 
ii.  lib.  6,  Prses.  24,  n.  17,  p.  772.     [If  the 

VOL.  I.  11 


162  LAW   OF  EVTDEN-CE.  [PAET  H. 

living  memory.*  But  this  doctrine  lias  since  been  overruled; 
and  it  is  now  held,  that  such  proof  is  not  an  essential  condition 
of  the  reception  of  evidence  of  reputation,  but  is  only  material 
as  it  affects  its  value  when  received.^  Where  the  nature  of  the 
subject  does  not  admit  of  proof  of  acts  of  enjoyment,  it  is  obvious 
that  proof  of  reputation  alone  is  sufficient.  So,  where  a  right  or 
custom  is  established  by  documentary  evidence,  no  proof  is  neces- 
sary of  any  particular  instance  of  its  exercise ;  for,  if  it  were 
otherwise,  and  no  instance  were  to  happen  within  the  memory  of 
man,  the  right  or  custom  would  be  totally  destroyed.^  In  the 
case  of  a  private  right,  however,  where  proof  of  particular  in- 
stances of  its  exercise  has  first  been  given,  evidence  of  reputation 
has  sometimes  been  admitted  in  confirmation  of  the  actual  enjoy- 
ment ;  but  it  is  never  allowed  against  it.^ 

§  131.  Declarations  must  be  ante  litem  motam.  Another  impor- 
tant qualification  of  the  exception  we  have  been  considering,  by 
which  evidence  of  reputation  or  common  fame  is  admitted,  is, 
that  the  declaration  so  received  must  have  been  onade  hefore 
any  controversy  arose  touching  the  matter  to  which  it  relates ; 
or,  as  it  is  usually  expressed,  ante  liteyn  motam.  The  ground  on 
which  such  evidence  is  admitted  at  all  is,  that  the  declarations 
"  are  the  natural  effusions  of  a  party  who  must  know  the  truth, 
and  who  speaks  upon  an  occasion  when  his  mind  stands  in  an 
even  position,  without  any  temptation  to  exceed  or  fall  short  of 
the  truth."  ^     But  no  man  is  presumed  to  be  thus  indifferent  in 

1  PerBuller,J.,inMorewoofU'.  Wood,  C.  662,  663,  per  Littledale,  J.  [Res.  v. 
14  East,  3:W,  n. ;  per  Le  Bhinc,  J.,  in  Bedfordshire,  4  E.  &  B.  5:^,o ;  Pritchard 
Weeks  v.  Sparke,  1  M.  &  S.  G88,  689.  v.  Powell,  10  Q.  B.  590  ;  Drinkwater  v. 

2  Crease  r.  Barrett,  1  Cromp.  Mees.  &  Porter,  7  C.  &  P.  181].  A  doctrine 
Pogc.  U19,  930.  See  also  ace.  Curson  v.  nearly  similar  is  held  by  the  civilians,  in 
Lomax,  'i  Ksp.  90,  per  Ld.  Ellenborough  ;  cases  of  ancient  i)rivate  rights.  Thus 
Steele  v.  Prickett,  2  Stark.  403,  460,  per  Mascardus,  after  stating,  upon  the  author- 
Abbott,  C.  J.;  Katcliff  v.  Cliapman,  4  ity  of  many  jurists,  that  "  Dominium  in 
Leon.  242,  as  explained  bv  Grose,  J.,  in  antiquis  proljari  per  famam,  traditnm 
Boebe  y.  Parker,  5 'r.  II.  32.  est,  —  veluti  si  fama  sit,  banc  domum 

8  Bcebe  ('.  Parker,  5  T.  li.  26,  32  ;  Doe  fuisse   Dantis    Poetio,    vel    alterius,   qui 

r.  Sisson,  12  East,  62  ;  Steele  i".  Prickett,  decessit,  jam  sunt  centum  anni,  et  nemo 

2  Stark.  4(j:;,  400.     A   single  act,  undis-  vidit,  qui  vidcrit,  quern  refert,"  &c.,  sub- 

turbed,  has  been  held  sutFicient  evidence  sequently  qualifies  this  general  proposi- 

of  a  custom,  the  court  refusing  to  set  tion    in    these    words:    "  Primo     limita 

aside  a   verdict  finding  a  custom   upon  principalem  {tonclusioncni,  ut  non   pro- 

sucli  evidence  alone.     Koe  v.  .Tefferv,  2  cedat,   nisi   cum    fama    concurrant  alia 

M.  &  S.  !>2  ;  Doe  c  Mason,  o  Wils.  03.  adminicula,   saltom    prajsentis    possessi- 

^  Wliite   V.    Lisle,   4   Mad.   214,   225.  onis,"   &c.     Mascard.  De   Prob.  vol.   ii. 

See  More  wood  v.  Wood,  14  East,  330,  n.,  Concl.  647,  n.  1,  14. 

per  Buller,  J.  ;  Weeks  v.  Sparke,  1  M.  &  ''  Per   Ld.   Eldon,   in   Whitelocke    v. 

S.  090,  per  Bavlev.J.  ;  Kosrers  o.  Allen,  1  Baker,   13   Vos.  514;   Rex  v.  Cotton,  3 

Campb.  309  ;  Richards  v.  Basse tt,  10  B.  &  Campb.  444,  446,  per  Dampier,  J. 


CHAP.  VI.]  MATTERS   OF   GENERAL  INTEREST.  163 

regard  to  matters  in  actual  controversy:  for,  when  the  contest 
has  begun,  people  generally  take  part  on  the  one  side  or  the 
other ;  their  minds  are  in  a  ferment ;  and,  if  they  are  disposed  to 
speak  the  truth,  facts  are  seen  by  them  through  a  false  medium. 
To  avoid,  therefore,  the  mischiefs  which  would  otherwise  result, 
all  ex  parte  declarations,  even  though  made  upon  oath,  referring 
to  a  date  subsequent  to  the  beginning  of  the  controversy,  are 
rejected.!  This  rule  of  evidence  was  familiar  in  the  Roman  law  ; 
but  the  term  lis  mota  was  there  applied  strictly  to  the  commence- 
ment of  the  action,  and  was  not  referred  to  an  earlier  period  of 
the  controversy .2  But  in  our  law  the  term  lis  is  taken  in  the 
classical  and  larger  sense  of  controversy  ;  and  by  lis  mota  is  under- 
stood the  commencement  of  the  controversy,  and  not  the  com- 
mencement of  the  suit.3  The  commencement  of  the  controversy 
has  been  further  defined  by  Mr.  Baron  Alderson,  in  a  case  of  pedi- 
gree, to  be  "  the  arising  of  that  state  of  facts  on  which  the  claim 
is  founded,  without  any  thing  more."  * 

§  132.  Lis  mota  defined.  The  lis  mota,  in  the  sense  of  our 
law,  carries  with  it  the  further  idea  of  a  controversy  upon  the  same 
particular  subject  in  issue.  For,  if  the  matter  under  discussion 
at  the  time  of  trial  was  not  in  controversy  at  the  time  to  which 
the  declarations  offered  in  evidence  relate,  they  are  admissible, 
notwithstanding  a  controversy  did  then  exist  upon  some  other 
branch  of  the  same  general  subject.  The  value  of  general  repu- 
tation, as  evidence  of  the  true  state  of  facts,  depends  upon  its 
being  the  concurrent  belief  of  minds  unbiassed,  and  in  a  situation 
favorable  to  a  knowledge  of  the  truth,  and  referring  to  a  period 
when  this  fountain  of  evidence  was  not  rendered  turbid  by  agita- 

1  TheBerkley  Peerage  case,  4  Campb.  *  Walker  v.  Countess  of  BeauchampI 
401,  409,  412.  413  ;  Monkton  v.  The  At-  6  C.  &  P.  552,  561.  But  see  Reilly  v. 
torney-General,  2  Russ.  &  My.  160,  161;  Fitzgerald,  1  Drury  (Ir.),  122,  where  this 
Richards  v.  Bassett,  10  B.  &  C.  657.  is  questioned.     [And  Shedden  v.  Attor- 

2  "  Lis  est,  ut  primum  in  jus,  vel  in  ney-General,  where  it  is  overruled ;  and 
judicium  ventuni  est ;  antequam  in  judi-  it  is  now  held,  that  this  must  be  not 
cium  veniatur,  controversia  est,  non  lis."  merely  facts  which  may  lead  to  dispute, 
Cujac.  Opera  Posth.  torn.  v.  col.  193,  B.  but  a  lis  mota  or  suit,  or  controversy  pre- 
and  col.  162,  D.  "  Lis  inchoata  est  ordi-  paratory  to  a  suit,  actually  commenced, 
nata  per  Ubellum,  et  satisdationem,  licet  And  upon  the  subject-matter  in  litiga- 
non  sit  lis  contestata."  Corpus  Juris,  tion,  Davies  v.  Lowndes,  7  Scott  N.  R. 
Glossatum,  tom.  i.  col.  553,  ad  Dig.  lib.  iv.  214.  And,  in  the  late  case  of  Butler  y. 
tit.  6,  1.  12.  "  Lis  mota  censetur,  etiamsi  Mountgarret,  it  was  held  that  a  contro- 
solus  actor  egerit."  Calv.  Lex.  verb.  Lis  versy  in  a  family,  though  not  at  that 
Mota.  moment  the  subject  of  a  suit,  constitutes 

3  Per  Mansfield,  C.  J.,  in  the  Berkley  sufficiently  a  lis  mota,  to  render  inadmis- 
Peerage  case,  4  Campb.  417  ;  Monkton  v.  sible  a  letter  written  on  that  subject  by 
The  Attoruey-General,  2  Russ.  &  My.  one  member  of  the  family  and  addressed 
161.  to  another.     7  H.  L.  Cas.  633.1 


164  LAW   OP  EVIDENCE.  [PAUT  H. 

tion.  But  the  discussion  of  other  topics,  however  simiLar  in  their 
general  nature,  at  the  time  referred  to,  does  not  necessarily  lead 
to  the  inference  that  the  particular  point  in  issue  was  also  con- 
troverted, and,  therefore,  is  not  deemed  sufficient  to  exclude  the 
sort  of  proof  we  are  now  considering.  ■  Thus,  where,  in  a  suit 
between  a  copyholder  and  the  lord  of  the  manor,  the  point  in 
controversy  was,  whether  the  customary  fine,  payable  upon  the 
renewal  of  a  life-lease,  was  to  be  assessed  by  the  jury  of  the  lord's 
court,  or  by  the  reasonable  discretion  of  the  lord  himself;  deposi- 
tions taken  for  the  plaintiff,  in  an  ancient  suit  by  a  copyholder 
against  a  former  lord  of  the  manor,  where  the  controversy  was 
upon  the  copyholder's  right  to  be  admitted  at  all,  and  not  upon 
the  terms  of  admission,  in  which  depositions  the  customary  fine 
was  mentioned  as  to  be  assessed  by  the  lord  or  his  steward,  were 
held  admissible  evidence  of  what  was  then  understood  to  be  the 
undisputed  custom.^  In  this  case,  it  Avas  observed  by  one  of  the 
learned  judges  that  "  the  distinction  had  been  correctly  taken, 
that,  where  the  lis  mota  was  on  the  very  point,  the  declarations  of 
persons  would  not  be  evidence  ;  because  you  cannot  be  sure,  that 
in  admitting  the  depositions  of  witnesses,  selected  and  brought 
forward  on  a  particular  side  of  the  question,  Avho  embark,  to  a 
certain  degree,  with  the  feelings  and  prejudices  belonging  to  that 
particular  side,  you  are  drawing  evidence  from  perfectly  unpol 
luted  sources.  But  where  the  point  in  controversy  is  foreign  to 
that  wliich  was  before  controverted,  there  never  has  been  a  lis 
mota,  and  consequently  the  objection  does  not  apply." 

§  133.  Declarations  post  litem  motam.  Declarations  made  after 
the  controversy  has  originated  are  excluded,  even  though  proof 
is  offered  that  the  existence  of  the  controversy  was  not  known  to 
the  declarant.  The  question  of  his  ignorance  or  knowledge  of 
this  fact  is  one  which  the  courts  will  not  try :  partly  because  of 
the  danger  of  an  erroneous  decision  of  the  principal  fact  by  the 
jury,  fi-om  the  raising  of  too  many  collateral  issues,  thereby  intro- 
ducing great  confusion  into  the  cause  ;  and  partly  from  the  fruit- 
lessness  of  the  inquiry,  it  being  from  its  very  nature  impossible, 
in  most  cases,  to  prove  that  the  existence  of  the  controversy  was 
not  known.  The  declarant,  in  these  cases,  is  always  absent,  and 
generally  dead.  Tlie  light  afforded  by  liis  declarations  is  at  best 
extremely  feeble,  and  far  from  being  certain  ;  and  if  introduced, 

1  Freeman  h  rhillips,  4  M.  &  S.  480,  497 ;  Elliott  v.  riersol,  1  Peters,  328, 337. 


CHAP.  VI.]  JIATTERS   OF   GENERAL  INTEREST. 


165 


with  the  proof  on  both  sides,  in  regard  to  his  knowledge  of  the 
controversy,  it  would  induce  darkness  and  confusion,  perilling 
the  decision  without  the  probability  of  any  compensating  good  to 
the  parties.  It  is  therefore  excluded,  as  more  likely  to  prove 
injurious  than  beneficial.^ 

§  134.  Exception  of  declarations  as  to  pedigree.  It  has  some- 
times been  laid  down,  as  an  exception  to  the  rule  excluding  dec- 
larations made  post  litem  motam^  that  declarations  concerning 
pedigree  will  not  be  invalidated  by  the  circumstance  that  they 
were  made  during  family  discussions,  and  for  the  purpose  of  pre- 
venting futiu-e  controversy ;  and  the  instance  given,  by  way  of 
illustration,  is  that  of  a  solemn  act  of  parents,  under  their  hands, 
declaring  the  legitimacy  of  a  child.  But  it  is  conceived  that  evi- 
dence of  tliis  sort  is  admissible,  not  by  way  of  exception  to  any 
rule,  but  because  it  is,  in  its  own  nature,  original  evidence  :  con- 
stituting part  of  the  fact  of  the  recognition  of  existing  relations 
of  consanguinity  or  affinity  ;  and  falling  naturally  under  the  head 
of  the  expression  of  existing  sentiments  and  affections,  or  of  dec- 
larations against  the  interest,  and  pecidiarly  within  the  knowl- 
edge of  the  party  making  them,  or  of  verbal  acts,  part  of  the  res 
gestce? 


1  [Shedden  v.  Attorney-General,  2  Sw. 
&  T.  170] ;  The  Berkley  Peerage  case,  4 
Campb.  417,  per  Mansfield,  C.  J. ;  supra, 
§  124.  This  distinction,  and  the  reasons 
of  it,  were  recognized  in  the  Roman  law  ; 
but  there  the  rule  was  to  admit  the  dec- 
larations, though  made  post  litem  motam, 
if  they  were  made  at  a  place  so  very  far 
remote  from  the  scene  of  the  controversy, 
as  to  remove  all  suspicion  that  the  decla- 
rant had  heard  of  its  existence.  Thus  it 
is  stated  by  Mascardus :  "  Istud  auteni 
quod  diximus,  debere  testes  deponere 
ante  litem  motam,  sic  est  .accipiendum, 
ut  verum  sit,  si  ibidem,  ubi  res  agitur, 
audierit ;  at  si  alibi,  in  loco  qui  longis- 
sime  distaret,  sic  intellexerit,  etiam  post 
litem  motam  testes  de  auditu  admittun- 
tur.  Longinquitas  enim  loci  in  causa  est, 
ut  omnis  suspicio  abesse  videatur  quae 
quidem  suspicio  adesse  potest,  quando 
testis  de  auditu  post  litem  motam,  ibi- 
dem, ubi  res  agitur,  deponit."  Mascard. 
De  Probat.  vol.  1,  p.  401  [429],  Concl. 
410,  n.  5,  6.  [But  a  declaration  made 
expressly  with  a  view  to  a  probable  fu- 
ture contest  is  admissible,  ^i/aHifun  valeat; 
but  not  if  made  in  a  prior  cause  on  the 
Bame  subject-matter,  but  to  this  effect 
the  same   precise  point  now  in  contro- 


versy must  have   been  there  involved. 
Jenkins  v.  Davies,  10  Q.  B.  n.  s.  314.] 

2  Supra,  §§  102-108,  131 ;  Goodright 
V.  Moss,  Cowp.  591 ;  Monkton  v.  The 
Attorney-General,  2  Russ  &  My.  147, 
IGO,  161,  164 ;  Slaney  v.  Wade,  1  My.  & 
Cr.  338  ;  The  Berkley  Peerage  case,  4 
Campb.  418,  per  Mansfield,  C.  J.  [It 
follows  from  the  above  explanation  of 
lis  mota,  first,  that  declarations  will  not 
be  rejected,  in  consequence  of  their  hav- 
ing been  made  with  the  express  view  rif  pre- 
venting disputes;  secondly,  that  they  are 
admissible,  if  no  dispute  has  arisen, 
though  made  in  direct  support  of  the  title 
of  tlie  declarant;  and,  thirdly,  that  the 
mere  fact  of  the  declarant  having  stood, 
or  having  believed  tliat  he  stood,  in  pari 
jure  with  the  party  relying  on  the  decla- 
ration, will  not  render  his  statement 
inadmissible.  In  support  of  the  first 
proposition,  the  Berkley  Peei-age  case 
may  be  referred  to,  wliere  the  judges 
unanimously  held,  in  conformity  with  an 
earlier  opinion  expressed  by  Lord  Mans- 
field (Goodright  v.  Moss,  2  Cowp.  591), 
that  an  entry  made  by  a  father  in  any 
book,  for  the  express  purpose  of  estab- 
lishing the  legitimacy  of  his  son  at  the 
time  of  his  birth,  in  case  the  same  shoiild 


166 


LAW   OF  EVIDENCE. 


[part  n. 


§  135.  "Witness  need  not  specify  from  whom  he  heard.  Where 
evidence  of  reputation  is  admitted,  in  cases  of  public  or  general 
interest,  it  is  not  necessary  that  the  witness  should  be  able  to 
specify  from  whom  he  heard  the  declarations.  For  that,  in  much 
the  greater  number  of  cases,  would  be  impossible ;  as  the  names 
of  persons  long  since  dead,  by  whom  declarations  upon  topics  of 
common  repute  have  at  some  time  or  other  been  made,  are  mostly 
foro'otten.i  And,  if  the  declarant  is  known,  and  appears  to  i.ave 
stood  in  pari  casu  with  the  party  offering  his  declarations  ii.  evi- 
dence, so  that  he  could  not,  if  living,  have  been  personally  exam- 
ined as  a  witness  to  the  fact  of  which  he  speaks,  this  is  no  vahd 
objection  to  the  admissibility  of  his  declarations.  The  reason  is, 
the  absence  of  opportunity  and  motive  to  consult  his  mterest,  at 
the  time  of  speaking.  Whatever  secret  wish  or  bias  he  may  have 
had  in  the  matter,  there  was,  at  that  time,  no  excited  interest 
called  forth  in  his  breast,  or,  at  least,  no  means  were  afforded  of 
promoting,  nor  danger  incurred  of  injuring,  any  interest  of  his 


be  called  in  question,  will  be  receivable 
in  evidence,  notwithstanding  the  pro- 
fessed view  with  which  it  was  made. 
4  Camp.  4J8.  Tliis  doctrine  has  since 
been  sanctioned  by  Lords  Brougham 
(Monkton  v.  Attorney -General,  2  Russ.  & 
Myl.  147,  100,  161,  104)  and  Cottenliam 
in  England  (Slaney  v.  Wade,  1  Myl.  &  Cr. 
838),  and  by  Lord  St.  Leonards  in  Ireland 
(Reilly  v.  Fitzgerald,  6  Ir.  Eq.  335,  344- 
349),  and  may  now  be  considered  as  es- 
tablished law" in  both  countries.  One  of 
the  latest  decisions  in  support  of  the  sec- 
ond proposition  is  Doe  v.  Davies,  10  Q.  B. 
314,  325,  where  the  court  observed,  that, 
although  a  feeling  of  interest  will  often 
cast  suspicion  on  declarations,  it  has 
never  been  held  to  render  them  inadmis- 
sible. The  third  proposition  is  equally 
clear  law  ;  for,  although  one  peerage  case 
appears  at  first  sight  to  throw  some  doubt 
upon  tiic  subject  (Zouch  Peer.,  Fr.  Min. 
207),  yet  it  is  highly  probable  tiiat  the 
pedigree  was  there  rejected,  not  as  hav- 
ing been  made  by  a  party  wiiile  standing 
inutile  same  situation  as  the  claimant, 
but  as  luiving  been  concocted  by  such 
person  in  direct  contemplation  of  himself 
laying  claim  to  the  dignity. 

But  even  if  the  case  be  not  susceptible 
of  this  explanation,  a  single  isolated  deci- 
sion can  scarcely  controvert  a  rule  of 
law  which  lias  been  sanctioned  and  acted 
upon  by  numerous  judges,  Moseley  v. 
Davies,  11  Price,  1(52,  179,  per  Graham, 
B.;  Harwood  v.  Sims,  Wightw.  112; 
Deacle  v.  Hancock,  13  Price,  23(3,  237; 


Monkton  v.  Attorney-General,  2  Russ.  & 
Myl.  159,  160,  per  Ld.  Brougham  ;  Free- 
man V.  Phillipps,  4  M.  &  Sel.  486,  491, 
per  Ld.  Ellenborough,  cited  with  appro- 
bation by  Ld.  Lyndhurst,  C.  B.,  in 
Davies  v.  Morgan,  1  C.  &  J.  593,  594; 
NichoUs  V.  Parker,  14  East,  331,  n. ;  Doe 
V.  Tarver,  Ry.  &  M.  141, 142,  per  Abbott, 
C.  J.,  and  which  is  so  founded  on  reason, 
that  a  contrary  doctrine  would  go  far 
towards  excluding  all  evidence  of  repu- 
tation. For  instance,  in  cases  of  public 
and  general  interest,  the  rejection  of  such 
evidence  would  be  wholly  inconsistent 
with  the  rule  which  requires  the  state- 
ment to  have  been  made  by  some  person 
having  competent  knowledge  of  the  sub- 
ject, post,  §  136 ;  and  in  cases  of  pedi- 
gree, though  the  result  of  excluding 
declarations  of  persons  in  pari  jure  would 
not  be  equally  mischievous,  it  would 
frequently  have  the  effect  of  drying  up 
sources  of  information  which  would  be 
liiglily  valuable  in  the  investigation  of 
truth.  In  any  one  of  the  three  classes 
of  declarations  just  mentioned,  it  is  very 
possible  that  the  declarant  may  have  had 
some  secret  wish  or  bias  which  may 
have  induced  him  to  make  a  statement 
either  partially  or  totally  false  ;  but  the 
same  observation  might  apply  to  all  evi- 
dence of  this  nature,  and  its  weight  in 
cacli  particular  case  must  be  determined 
by  the  jury.     Tay.  Ev.  §§  565,  560.] 

1  Moseley  i'.  Davies,  11  Price,  162, 
174,  per  Richards,  0.  B. ;  Harwood  v. 
Sims,  Wightw.  112. 


CHAP.  VI.]  IklATTEES    OF   GEN*EKAL   rNTEKEST.  167 

own ;  nor  could  any  sucli  be  the  necessary  result  of  Lis  declara- 
tions. Whereas,  on  a  trial,  in  itself  and  of  necessity  directly 
affecting  his  interest,  there  is  a  double  objection  to  admitting  his 
evidence,  in  the  concurrence  both  of  the  temptation  of  interest 
and  the  excitement  of  the  lis  mota} 

§  136.  Must  have  knowledge.  Indeed  the  rejection  of  the  evi- 
dence of  reputation,  in  cases  of  public  or  general  interest,  because 
it  may  have  come  from  persons  in  pari  casu  with  the  party  offer- 
ing it,  would  be  inconsistent  with  the  qualification  of  the  rule 
which  has  already  been  mentioned  ;  namely,  that  the  statement 
thus  admitted  must  appear  to  have 'been  made  by  persons  having 
competent  knowledge  of  the  subject.^  Without  such  knowledge, 
the  testimony  is  wortliless.  In  matters  of  public  right,  all  per- 
sons are  presumed  to  possess  that  degree  of  knowledge  which 
serves  to  give  some  weight  to  their  declarations  respecting  them, 
because  all  have  a  common  interest.  But  in  subjects  interesting 
to  a  comparatively  small  portion  of  the  community,  as  a  city  or 
parish,  a  foundation  for  admitting  evidence  of  reputation,  or  the 
declarations  of  ancient  and  deceased  persons,  must  first  be  laid, 
by  showing  that,  fi-om  their  situation,  they  probably  were  con- 
versant with  the  matter  of  which  they  were  speaking.^ 

§  137.  Matters  of  private  interest.  The  probable  want  of  com- 
jutent  knoivledge  in  the  declarant  is  the  reason  generally  assigned 
for  rejecting  evidence  of  reputation  or  common  fame,  in  matters 
of  mere  private  right.  "  Evidence  of  reputation,  upon  general 
points,  is  receivable,"  said  Lord  Kenyon,  "  because,  all  manldnd 
laeing  interested  therein,  it  is  natural  to  suppose  that  they  may 
be  conversant  with  the  subjects,  and  that  they  should  discourse 
together  about  them,  having  all  the  same  means  of  information. 

1  Moseley  v.  Davies,  11  Price,  179,  Broxtowe,  4  B.  &  Ad.  273;  Rogers  i;. 
per  Graham,  B. ;  Deacle  v.  Hancock,  13  Wood,  2  B.  &  Ad.  245.  The  Roman  law, 
Price,  236,  237 ;  Nichols  v.  Parker,  \i  as  stated  by  Mascardus,  agrees  with  the 
East.ool,  n. ;  Harwood  v.  Sims,  Wightw.  doctrine  in  tlie  text.  "  Confines  proban- 
112;'  Freeman  v.  Phillipps,  4  M.  &  S.  tur,  per  testes.  Verum  scias  velim, 
486,  491,  cited  and  approved  by  Lynd-  testes  in  hac  materia,  qui  vicini,  et  cir- 
hurst,  C  B.,  in  Davies  v.  Morgan,  1  C.  &  cum  ibi  habitant,  esse  magis  idoneos 
J.  593,  594 ;  Monkton  v.  Attorney-Gen-  quam  alios.  Si  testes  non  sentiant  com- 
eral,  2  Russ.  &  ily.  159,  160,  per  Ld.  Cii.  modum  vel  incommodum  immediatum, 
Bro'ugliam;  Reedv.  Jackson,  1  East,  355,  possint  pro  sua  coinmuuitate  deponere. 
357  ;  Chapman  v.  Cowlan,  13  East,  10.  Licet  hujusmodi  testes  sint  de  universi- 

2  Snpra,  §§  128,  129.  tate,  et  deponant  super  confinibus  suae 

3  Weeks  v.  Sparke,  1  M.  &  S.  679,  686,  universitatis,  probant,  dummodum  pr»- 
690;  Doe  d.  Molesworth  v.  Sleeman,  1  cipuura  ipsi  commodum  non  sentiant. 
New  Pr.  Cas.  170;  Morewood  y.  Wood,  licent  inferant  commodum  in  univer- 
14  East,  327.  n. ;  Crease  v.  Barrett,  1  Cr.  sum."  Mascard.  De  Probat.  vol.  iv.  pp 
M.  &  Ros.  929;  Duke  of  Newcastle  v.  389,  390,  Concl.  395,  n.  1,  2,  9,  19. 


168 


LAW   OF  EVIDENCE. 


[part  n. 


But  how  can  this  apply  to  private  titles,  either  with  regard  to 
partievilar  customs,  or  private  prescriptions  ?  How  is  it  possible 
for  strangers  to  know  any  thing  of  what  concerns  only  private 
titles  ?  "  ^  The  case  of  prescriptive  rights  has  sometimes  been 
mentioned  as  an  exception ;  but  it  is  believed,  that,  where  evi- 
dence of  reputation  has  been  admitted  in  such  cases,  it  will  be 
found  that  the  right  was  one  in  which  many  persons  were  equally 
interested.  The  weight  of  authority,  as  well  as  the  reason  of  the 
rule,  seems  alike  to  forbid  the  admission  of  this  kind  of  evidence, 
except  in  cases  of  a  public  or  quciHi  public  nature.^ 

§  138,  Particular  facts.  This  principle  may  serve  to  explain 
and  reconcile  what  is  said  in  the  books  respecting  the  admissibility 
of  reputation^  in  regard  to  particular  facts.  Upon  general  points, 
as  we  have  seen,  such  evidence  is  receivable,  because  of  the  gen- 
eral interest  which  the  community  have  in  them  ;  but  particular 
facts  of  a  private  nature,  not  being  notorious,  may  be  misrepre- 
sented or  misunderstood,  and  may  have  been  connected  with 
other  facts,  by  which,  if  known,  their  effect  might  be  limited  or 
explained.  Reputation  as  to  the  existence  of  such  particular  facts 
is,  therefore,  rejected.^  But,  if  the  particular  fact  is  proved  ali- 
unde, evidence  of  general  reputation  maybe  received  to  qualify  and 
explain  it.  Thus,  in  a  suit  for  tithes,  where  a  parochial  modus 
of  sixpence  per  acre  was  set  up,  it  was  conceded  that  evidence  of 


•  Morewood  v.  Wood,  14  East,  329,  n. 
per  Ld.  Ken  yon ;  1  Stark.  Evid.  30,  31 ; 
Clothier  v.  Cliapman,  14  East,  331,  n.; 
Reed  v.  Jackson,  1  ICast,  357  ;  Outram  v. 
Morewood,  5  'P.  R.  121,  123;  Weeks  v. 
Sparke,  1  M.  &  S.  679. 

■^  Ellicott  V.  Pearl,  10  Peters,  412; 
Richards  v.  Rassctt,  10  B.  &  C.  (557,  602, 
663,  per  Littlcdale,  J. ;  anpra,  §  130.  The 
following  are  cases  of  a  quasi  public 
nature ;  though  they  are  usually,  but, 
on  the  foregoing  i)rinciples,  erroneously, 
citetl  in  favor  of  the  admissibility  of  evi- 
dence of  reputation  in  cases  of  mere  pri- 
vate right.  Bishop  of  Meath  v.  Lord 
P.eltielil,  Bull.  N.  P.  2'.»5,  wlierc  the  ques- 
tion was,  wlio  ])rescnted  the  former  in- 
cumbent of  a  parish,  —  a  fact  interesting 
to  all  the  parisliioners ;  Price  v.  Little- 
■wr)od,  3  Campb.  2H8,  where  an  old  entry 
ill  the  vestry-book,  by  the  church-war- 
dens, showing  by  what  persons  certain 
parts  of  the  church  were  repaired,  in 
consideration  of  their  occupancy  of  pews, 
was  admitted,  to  show  title  to  a  pew  in 
one  under  whom  the  plaintiff  chwmed; 
Barnes  v.  Mawson,  1  M.  &  S.  77,  which 


was  a  question  of  boundary  between  two 
large  districts  of  a  manor  called  the  Old 
and  New  Lands ;  Anscomb  v.  Shore,  1 
Taunt.  261,  where  the  right  of  common 
prescribed  for  was  claimed  by  all  the 
inhabitants  of  Hamj)ton ;  Blackett  r. 
Lowes,  2  M.  &  S.  494,  500,  where  tlie 
question  was  as  to  the  general  usage  of 
all  the  tenants  of  a  manor,  the  defendant 
being  one,  to  cut  certain  woods;  Brett 
V.  Beales,  1  Mood.  &  Malk.  410,  which 
was  a  claim  of  ancient  tolls  belonging  to 
tiie  corporation  of  Cambridge  ;  White 
V.  Lisle,  5  Madd.  Ch.  214,  224,  22-'),  where 
evidence  of  reputation,  in  regard  to  a 
parochial  modus,  was  held  admissible,  be- 
cause "a  class  or  district  of  persons  was 
concerned ; "  but  denied  in  regard  to  a 
/arm  modus,  because  none  but  tlie  occu- 
'])ant  of  the  farm  was  concerned.  In 
Davies  r.  Lewis,  2  Chitty,  535,  the  dec- 
larations offered  in  evidence  were  clearly 
admissible,  as  being  those  of  tenants  in 
possession,  stating  under  whom  they  held. 
See  .s'"/)ra,  §  108. 

«  [Rex  V.  Bliss,  7  A.  &  E.  550.1 


CHAP.  VI.]  MATTERS   OF   GENERAL  INTEREST.  169 

reputation  of  the  payment  of  that  sum  for  one  piece  of  land  would 
not  be  admissible  ;  but  it  was  held,  that  such  evidence  would  be 
admissible  to  the  fact  that  it  had  always  been  customary  to  pay 
that  sum  for  all  the  lands  in  the  parish.^  And  where  the  ques- 
tion on  the  record  was  whether  a  turnpike  was  withm  the  limits 
of  a  certain  town,  evidence  of  general  reputation  was  admitted 
to  show  that  the  bounds  of  the  town  extended  as  far  as  a  certain 
close,  but  not  that  formerly  there  were  houses,  where  none  then 
stood ;  the  latter  being  a  particular  fact,  in  which  the  public  had 
no  interest.^  So,  where,  upon  an  information  against  the  sheriff 
of  the  county  of  Chester,  for  not  executing  a  death-warrant,  the 
question  was  whether  the  sheriff  of  the  county  or  the  sheriffs  of 
the  city  were  to  execute  sentence  of  death,  traditionary  evidence 
that  the  sheriffs  of  the  county  had  always  been  exempted  from 
the  performance  of  that  duty  was  rejected,  it  being  a  private 
question  between  two  individuals  ;  the  public  having  an  interest 
only  that  execution  be  done,  and  not  in  the  person  by  whom  it 
was  performed.^  The  question  of  the  admissibility  of  this  sort  of 
evidence  seems,  therefore,  to  turn  upon  the  nature  of  the  reputed 
fact,  whether  it  was  interesting  to  one  party  only  or  to  many.  If 
it  were  of  a  public  or  general  nature,  it  falls  within  the  exception 
we  are  now  considering,  by  wMch  hearsay  evidence,  under  the 
restrictions  already  mentioned,  is  admitted.  But  if  it  had  no  con- 
nection with  the  exercise  of  any  public  right,  nor  the  discharge 
of  any  public  duty,  nor  with  any  other  matter  of  general  interest, 
it  falls  within  the  general  rule  by  which  hearsay  evidence  is  ex- 
cluded.* 

1  Harwood  v.  Sims,  Wightw.  112,  more  "Weeks  v.  Sparke,  1  M.  &  S.  679 ;  With- 
f  ully  reported  and  explained  in  Moseley  nell  v.  Gartham,  1  Esp.  322 ;  Doe  v. 
r.  Davies,  11  Price,  162,  169-172;  Chat-  Tliomas,  14  East,  323;  Pliil.  &  Am.  on 
field  V.  Fryer,  1  Price.  253;  Wells  v.  Evid.  258;  1  Stark.  Evid.  34,  35;  Out- 
Jesus  College,  7  C.  &  P.  284;  Leathes  v.  ram  v.  Morewood,  5  T.  R.  121,  123;  Rex 
Newith,  4  Price,  355.  v.  Eriswell,  3  T.   R.  709,  per  Grose,  J. 

2  Ireland  v.  Powell,  Salop.  Spr.  Ass.  "Where  particular  knowledge  of  a  fact  is 
1802,  per  Chambre,  J. ;  Peake's  Evid.  13,  sought  to  be  brought  home  to  a  party, 
14  (Norris's  edit.  p.  27).  [It  is  no  ground  evidence  of  the  general  reputation  and 
of  objection  to  the  admissibility  of  such  belief  of  the  existence  of  that  fact, 
evidence,  that  matters  of  private  interest  among  his  neighbors,  is  admissible  to  the 
are  also  involved  in  the  public  contro-  jury,  as  tending  to  show  that  he  also  had 
versy.  Reg.  v.  Bedford,  4  El.  &  Bl.  535 ;  knowledge  of  it,  as  well  as  they.  Bran- 
8.  c.  29  Eng.  Law  &  Eq.  89.]  der  v.  Ferridy,  16  La.  296.     [Not,  how- 

3  Rex  V.  Antrobus,  2  Ad.  &  El.  788,  ever,  unless  it  is  a  matter  of  public 
794.  interest.      Notoriety,  for  instance,    will 

*  "White  V.  Lisle,  4  Madd.  Ch.  214,  not  prove  a  dissolution  of  partnership. 
224,  225;  Bishop  of  Meath  v.  Lord  Bel-  Pitcher  v.  Barrows,  17  Pick.  (Mass.)  361; 
field.   1    Wils.   215;    Bull.   N.    P.    295;     anie;  §  137 ; />os^,  vol.  ii.  §  483.] 


170 


LAW   OF  EVIDENCE. 


[PAET  n. 


§  189.  Documents,  maps,  verdicts.  Hitherto  we  have  mentioned 
oral  declarations,  as  the  medium  of  proving  traditionary  reputa- 
tion in  matters  of  public  and  general  interest.  The  princijAe, 
however,  upon  which  these  are  admitted,  apjyiies  to  documentary 
and  all  other  kinds  of  jproof  denominated  hearsay.  If  the  matter 
in  controversy  is  ancient,  and  not  susceptible  of  better  evidence, 
any  proof  in  the  nature  of  traditionary  declarations  is  receivable, 
whether  it  be  oral  or  written ;  subject  to  the  qualifications  we 
have  stated.  Thus,  deeds,  leases,  and  other  private  documents, 
have  been  admitted  as  declaratory  of  the  public  matters  recited 
in  them.i  Maps,  also,  showing  the  boundaries  of  towns  and 
parishes,  are  admissible,  if  it  appear  that  they  have  been  made  by 
persons  having  adequate  knowledge.^  Verdicts,  also,  are  receiv- 
able evidence  of  reputation,  in  questions  of  public  or  general 
interest.^  Thus,  for  example,  where  a  public  right  of  way  was  in 
question,  the  plaintiff  was  allowed  to  show  a  verdict  rendered  in 
his  own  favor,  against  a  defendant  in  another  suit,  in  which  the 
same  right  of  way  was  in  issue ;  but  Lord  Kenyon  observed,  that 
such  evidence  was,  perhaps,  not  entitled  to  much  weight,  and 
certainly  was  not  conclusive.  The  circumstance,  that  the  ver- 
dict was^osi  litem  motam^  does  not  affect  its  admissibility.^ 

§  140.  Against  a  public  right.  It  is  further  to  be  observed,  that 
reputation  is  evidence  as  well  against  a  public  right  as  in  its  favor. 
Accordingly,  where  the  question  was,  whether  a  landing-place 
was  public  or  private  property,  reputation,  from  the  declaration 


1  Curzon  v.  Lomax,  5  Esp.  60 ;  Brett 
V.  Beales,  1  M.  &  M.  410;  Claxton  v. 
Dare,  10  B.  &  C.  17  ;  Clarkson  v.  Wood- 
liouse,  5  T.  li.  412,  n. ;  s.  c.  3  Doug.  189; 
Barnes  v.  Mawson,  1  M.  &  S.  77,  78; 
Coombs  V.  Coetlier,  1  M.  &  M.  398 ;  Beebe 
V.  I'arker,  5  T.  K.  26 ;  Freeman  v.  Pliil- 
lips,  4  M.  &  S.  48(5 ;  Crease  v.  Barrett,  1 
Cr.  Mees.  &  llos.  'J2-> ;  Denn  v.  Spray,  1 
T.  R.  466;  Bullen  v.  Michel,  4  Dow,  298; 
Taylor  r.  Cook,  H  Price,  650. 

•-2  1  Phil.  Eviil.  250,  251 ;  Alcock  v. 
Cooke,  2  Moore  &  Payne,  625;  s.  c.  5 
Bing.  340;  Noyes  (■.  White,  19  Conn.  250. 
Upon  a  question  of  boundary  between 
two  farms,  it  being  proved  that  tlie  boun- 
dary of  one  of  them  was  identical  with 
that  of  a  hamlet,  evidence  of  reputation, 
as  to  the  bounds  of  the  hamlet,  was  held 
admissible.  Thomas  v.  Jenkins,  1  N.  & 
P.  688.  But  an  old  map  of  a  parish,  pro- 
duced from  the  j)arisli  chest,  and  which 
was  made  under  a  private  enclosure  act, 


was  held  inadmissible  evidence  of  boun- 
dary, without  proof  of  the  inclosure  act. 
Keg.  V.  Milton,  1  C.  &  K.  58. 

^  But  an  interlocutory  decree  for  pre- 
serving the  status  ipio,  until  a  final  deci- 
sion upon  the  right  should  be  had,  no 
final  decree  ever  having  been  made,  is 
inadmissible  as  evidence  of  reputation. 
Pirn  V.  Currell,  6  M.  &  W.  234. 

*  Reed  v.  Jackson,  1  East,  355,  857; 
Bull.  N.  P.  233;  City  of  London  v. 
Clarke,  Carth.  181 ;  Rhodes  v.  Ains- 
worth,  1  B.  &  Aid.  87,  89,  per  Holroyd, 
J.;  Lancum  v.  Lovell,  9  Bing.  405,409; 
Cort  V.  Birkbeck,  1  Doug.  218,  222,  i)er 
Lord  Mansfield  ;  Case  of  tlie  Manchester 
Mills,  1  Doug.  221,  n. ;  Berry  v.  ]?anner, 
IVake's  Cas.  150;  Biddulph  v.  Atlier,  2 
Wils.  23;  Brisco  v.  Lomax,  3  N.  &  P. 
388;  Evans  v.  Rees,  2  P.  &  D.  G27 ;  s.  c. 
10  Ad.  &  El.  151  [Carnarvon  r.  Villebois, 
13  M.  &  W.  313;  Reg.  v.  Brightside,  13 
Q.  B.  933]. 


CHAP.  VI.]  IIATTEES   OF  GENERAL  INTEREST.  ITl 

of  ancient  deceased  persons,  that  it  was  the  private  landing- 
place  of  the  party  and  liis  ancestors,  was  held  admissible ;  the 
learned  judge  remarking,  that  there  was  no  distinction  between 
the  evidence  of  reputation  to  establish  and  to  disparage  a  public 
right.  ^ 

1  Drinkwater  v.  Porter,  7  C.  &  P.  181;     Hatherton,  10  M.  &  W.  218;  Portland  v. 
R.  i;.  Sutton,  3  N.  &  P.  569  [Anglesea  v.     Hill,  4  L.  R.  Eq.  765]. 


172  LAW   OF  EVIDENCE.  [PABT  U. 


CHAPTER  VII. 

OF  ANCIENT  POSSESSIONS. 

§  141.  Ancient  possessions  and  documents.  A  second  exception  to 
the  rule,  rejecting  hearsay  evidence^  is  allowed  in  cases  of  ancient 
possession^  and  in  favor  of  the  admission  of  ancient  documents  in 
support  of  it.  In  matters  of  private  right,  not  affecting  any  public 
or  general  interest,  hearsay  is  generally  inadmissible.  But  the 
admission  of  ancient  documents,  purporting  to  constitute  part  of 
the  transactions  themselves^)  to  which,  as  acts  of  ownership,  or  of 
the  exercise  of  right,  the  party  against  whom  they  are  produced 
is  not  privy,  stands  on  a  different  principle.  It  is  true,  on  the 
one  hand,  that  the  documents  in  question  consist  of  evidence 
which  is  not  proved  to  be  part  of  any  res  gestce^  because  the  only 
proof  of  the  transaction  consists  in  the  documents  themselves ; 
and  these  may  have  been  fabricated,  or,  if  genuine,  may  never 
have  been  acted  upon.  And  their  effect,  if  admitted  in  evidence, 
is  to  benefit  persons  connected  in  interest  with  the  original  par- 
ties to  the  documents,  and  from  whose  custody  they  have  been 
produced.  But,  on  the  other  hand,  such  documents  always 
accompany  and  form  a  part  of  every  legal  transfer  of  title  and 
possession  by  act  of  the  parties ;  and  there  is,  also,  some  presump- 
tion against  their  fabrication,  where  they  refer  to  coexisting  sub- 
jects by  wliich  their  truth  might  be  examined.^  On  this  ground, 
therefore,  as  well  as  because  such  is  generally  the  only  attainable 
evidence  of  ancient  possession,  this  proof  is  admitted,  under  the 
qualifications  which  will  be  stated. 

§  142.  Documents  must  come  from  proper  custody.  As  the  value 
of  these  documents  depends  mainly  on  their  having  been  contem- 
poraneous, at  least,  with  the  act  of  transfer,  if  not  part  of  it,  care 
is  first  taken  to  ascertain  their  genuineness ;  and  this  may  be 
shown  prima  facie^  by  proof  that  the  document  comes  from  the 

1  1  Pliil.  Evid.  273;  1  Stark.  EviJ.  GO,     docuraonts  are  those  more  than   thirty 
67 ;   Clarkson   v.   Wocxlhouse,    6    T.    R.     years  old.     Ante,  §  21.] 
413,  n.,  per  Lord  Mansfield.      [Ancient 


CHAP,  vn.] 


OP  ANCIENT  POSSESSIONS. 


173 


proper  custody^  or  by  otherwise  accounting  for  it.  Documents 
found  in  a  place  in  wliicli,  and  under  the  care  of  persons  with 
whom,  such  papers  might  naturally  and  reasonably  be  expected 
to  be  found,  or  in  the  possession  of  persons  having  an  interest  in 
them,  are  in  precisely  the  custody  wliich  gives  authenticity  to 
documents  found  within  it.^  "  For  it  is  not  necessary,"  observed 
Tindal,  C.  J.,  "  that  they  should  be  found  in  the  best  and  mo^c 
l^roper  23lace  of  deposit.  If  documents  continue  in  such  custody, 
there  never  would  be  any  question  as  to  their  authenticity :  but 
it  is  Avhen  documents  are  found  in  other  than  their  proper  place 
of  deposit,  that  the  investigation  commences,  whether  it  is  rea- 
sonable and  natural,  under  the  circumstances  in  the  particular 
case,  to  expect  that  they  should  have  been  in  the  place  where 
they  are  actually  found ;  for  it  is  obvious,  that,  while  there  can 
be  only  one  place  of  deposit  strictly  and  absolutely  proper,  there 
may  be  many  and  various  that  are  reasonable  and  probable, 
though  differing  in  degree  ;  some  being  more  so,  some  less  ;  and, 
in  those  cases,  the  propositian  to  be  determined  is,  whether  the 


1  Per  Tindal,  C.  J.,  in  Bishop  of  Meath 
V.  Marquis  of  Winchester,  2  Bing.  N.  C. 
183,  200,  201,  expounded  and  confirmed 
by  Parke,  B.,  in  Croughton  v.  Blake,  12 
M.  &  W.  205,  208;  and  in  Doe  d.  Jacobs 
V.  Phillips,  10  Jur.  34 ;  8  Ad.  &  El.  n.  s. 
158.  See  also  Lygon  v.  Strutt,  2  Anstr. 
601 ;  Swinnerton  v.  Marquis  of  Stafford, 
3  Taunt.  91;  BuUen  v.  Michel,  4  Dow, 
297 ;  Earl  v.  Lewis,  4  Esp.  1 ;  Randolph 
V.  Gordon,  5  Price,  312;  Manby  v.  Curtis, 
1  Price,  225,  282,  per  Wood,  B. ;  Bertie 
V.  Beaumont,  2  Price,  303,  307 ;  Barr  v. 
Gratz,  4  Wheat.  213,  221;  Winne  v.  Pat- 
terson, 9  Peters,  663-675;  Clarke  v. 
Courtney,  5  Peters,  319,  344;  Jackson  v. 
Laroway,  8  Johns.  Cas.  383,  approved  in 
Jackson  v,  Luquere,  5  Cowen,  221,  225; 
Hewlett  V.  Cock,  7  Wend.  371,  374;  Dun- 
can V.  Beard,  2  Nott  &  McC.  400;  Mid- 
dleton  V.  Mass,  2  Nott  &  McC.  55;  Doe 
V.  Beynon,  4  P.  &  D.  193;  infra,  §  570; 
Doe  V.  Pearce,  2  M.  &  Rob.  240;  Tolman 
V.  Emerson,  4  Pick.  160  [United  States 
V.  Castro,  2  How.  346].  An  ancient  ex- 
tent of  crown  lands,  found  in  the  office 
of  the  land  revenue  records,  it  being  the 
proper  repository,  and  purporting  to  have 
been  made  by  the  proper  officer,  has  been 
held  good  evidence  of  the  title  of  the 
crown  to  lands  therein  stated  to  have 
been  purchased  b)'  the  crown  from  a 
subject.  Doe  d.  Wm.  IV.  v.  Roberts,  13 
M.  &  W.  520.     [An  ancient  private  sur- 


vey is  not  evidence.  Daniel  v.  Wilkin,  7 
Exch.  429.]  Courts  will  be  liberal  in 
admitting  deeds,  where  no  suspicion 
arises  as  to  their  authenticity.  Doe  v. 
Keeling,  36  Leg.  Obs.  312;  12  Jur.  433; 
11  Ad.  &  El.  N.  s.  884.  The  proper  cus- 
tody of  an  expired  lease  is  that  of  the 
lessor.  Ibid.,  per  Wightman,  J.  Whether 
a  document  comes  from  the  proper  cus- 
tody is  a  question  for  the  judge  and  not 
for  the  jury  to  determine.  Ibid. ;  Rees  v. 
Walters,  3  M.  &  W.  527,  531.  Tlie  rule 
stated  in  the  text  is  one  of  the  grounds 
on  which  we  insist  on  the  genuineness  of 
the  books  of  the  Holy  Scriptures.  They 
are  found  in  the  proper  custody,  or  place, 
where  alone  they  ought  to  be  looked  tor; 
namely,  the  church,  where  they  have 
been  kept  from  time  immemorial.  They 
have  been  constantly  referred  to,  as  the 
foundation  of  faith,  by  all  the  opposing 
sects,  whose  existence  God,  in  his  wis- 
dom, has  seen  fit  to  permit ;  whose  jeal- 
ous vigilance  would  readily  detect  any 
attempt  to  falsify  the  text,  and  whose 
diversity  of  creeds  would  render  any 
mutual  combination  morally  impossible. 
The  burden  of  proof  is,  therefore,  on  the 
objector,  to  impeach  the  genuineness  of 
these  books ;  not  on  the  Christian,  to 
establish  it.  See  Greenleaf  on  the  Tes- 
timony of  the  Evangelists,  Prelim.  Obs. 
§9- 


174  LAW   OF  EVIDENCE.  [PAET  U. 

actual  custody  is  so  reasonably  and  probably  accounted  for,  that 
it  impresses  the  mind  with  the  conviction  that  the  instrument 
found  in  such  custody  must  be  genuine.  That  such  is  the  charac- 
ter and  description  of  the  custody  wliion  is  held  sufficiently 
f^enuine  to  render  a  document  admissible  appears  from  all  the 
cases." 

§  143,  MvLBt  be  shown  to  have  been  acted  on.  It  is  further 
requisite,  where  the  nature  of  the  case  will  admit  it,  that  proof 
be  given  of  some  act  done  in  reference  to  the  documents  offered 
in  evidence,  as  a  further  assurance  of  their  genuineness,  and  of 
the  claiming  of  title  under  them.  If  the  document  bears  date 
post  litem  motam,  however  ancient,  some  evidence  of  corre- 
spondent acting  is  always  scrupulously  required,  even  in  cases 
where  traditionary  evidence  is  receivable.^  But  in  other  cases, 
where  the  transaction  is  very  ancient,  so  that  proof  of  contempo- 
raneous acting,  such  as  possession,  or  the  like,  is  not  probably  to 
be  obtained,  its  production  is  not  required.^  But  where  unex- 
ceptionable evidence  of  enjoyment,  referable  to  the  document, 
may  reasonably  be  expected  to  be  found,  it  must  be  produced.^ 
If  such  evidence,  referable  to  the  document,  is  not  to  be  expected, 
still  it  is  requisite  to  prove  some  acts  of  modern  enjoyment,  with 
reference  to  similar  documents,  or  that  modern  possession  or  user 
should  be  shown,  corroborative  of  the  ancient  documents.* 

§  144.  Must  be  part  of  the  transaction.  Under  these  qualifica- 
tions, ancient  documents,  purporting  to  be  a  part  of  the  transao- 
tions  to  which  they  relate,  and  not  a  mere  narrative  of  them,  are 
receivable  as  evidence  that  those  transactions  actually  occurred. 
And  though  they  are  spoken  of  as  hearsay  evidence  of  ancient 
possession,  and  as  such  are  said  to  be  admitted  in  exception  to 
the  general  rule ;  yet  they  seem  rather  to  be  parts  of  the  res 
gestce,  and  therefore  admissible  as  original  evidence,  on  the  prin- 
ciple already  discussed.  An  ancient  deed,  by  which  is  meant 
one  more  than  thirty  years  old,  having  notliing  suspicious  about 

1  1  Pliil.  Evid.  277  ;  Brett  v.  Beales,  1  413,  n.,  per  Lcl.  Mansfield;  supra,  §  130, 

^liod.  &  j\I.  410  [United  States  v.  Cas-  and  cases  tliere  cited. 
tTO,  24  H()w.:3Kj.     Absence  Dftlie  support  »  1  riiil.  Evid.  277;  Plaxton  r.  Dare, 

derived   from    proof    of   some   act  done  10  B.  &  C.  17. 

goes  ratiier  to   tiie  weight  than  to  tiie  *  Kogers  ;».  Allen,  1  Campb.  309,  311 ; 

admissibility   of    tlie   document  as   evi-  Clarkson  v.  Wooilhouse,  5  T.  R.  412,  n. 

dence.     Malcomson  v.  O'Dca.  10  H.  of  L.  See  the  cases  collected  in  note  to  §  144, 

014;  Doe  v.  I'utman,  3  Q.  B.  622].  infra. 

'^  Claritson  v.  Woodhouse,  6  T.  R.  412; 


CHAP.  YU.} 


OF  ANCIENT  POSSESSIONS. 


175 


it,  is  presumed  to  be  efeniiine  without  express  proof,  tlie  witnesses 
being-  presumed  dead ;  and,  if  it  is  found  in  the  proper  custody, 
and  is  corroborated  by  evidence  of  ancient  or  modern  corre- 
sponding enjoyment,^  or  by  other  equivalent  or  expLanatory  proof, 
it  is  to  be  presumed  that  the  deed  constituted  part  of  the  actual 
transfer  of  property  therein  mentioned  ;  because  this  is  the  usual 
and  ordinary  course  of  such  transactions  among  men.  The 
residue  of  tlie  transaction  may  be  as  unerringly  inferred  from 
the  existence  of  genuine  ancient  documents,  as  the  remainder  of 
a  statue  may  be  made  out  from  an  existing  torso,  or  a  perfect 
skeleton  from  the  fossil  remains  of  a  part. 

§  145.  Ancient  boundaries.  Under  this  head  may  be  mentioned 
the  case  of  ancient  boundaries;  in  proof  of  which,  it  has  sometimes 
been  said  that  traditionary  evidence  is  admissible  from  the  natiu-e 
and  necessity  of  the  case.  But,  if  the  principles  already  dis- 
cussed in  regard  to  the  admission  of  hearsay  are  sound,  it  will  be 
difficidt  to  sustain  an  exception  in  favor  of  such  evidence  merely 
as  applying  to  boundary,  where  the  fact  is  particular,  and  not  of 
public  or  general,  interest.      Accordingly,  though  evidence  of 


1  It  has  been  made  a  question,  wlietlier 
the  document  may  be  read  in  evidence, 
before  the  proof  of  possession  or  other 
equivalent  corroborative  proof  is  offered  ; 
but  it  is  now  stated  that  the  document,  if 
otherwise  apparent!}' genuine,may  be  first 
read;  for  the  question,  wliether  there 
has  been  a  corresponding  possession,  can 
hardly  be  raised  till  the  court  is  made 
acquainted  with  the  tenor  of  the  instru- 
ment. Doe  V.  Passingham,  2  C.  &  P.  440. 
If  tlie  deed  appears,  on  its  face,  to  have 
been  executed  under  an  autliority  wjiicli 
is  matter  of  record,  it  is  not  admissible, 
however  ancient  it  may  be,  as  evidence  of 
title  to  land,  without  proof  of  the  author- 
ity under  which  it  was  executed.  Tol- 
man  v.  Emerson,  4  Pick.  KiO.  A  graver 
question  has  been,  whether  the  proof  of 
possession  is  indispensable ;  or  whether 
its  absence  may  be  supplied  by  other 
satisfactory  corroborative  evidence.  In 
Jackson  d.  Lewis  v.  Laroway,  3  Johns. 
Gas.  283,  it  was  lield  by  Kent,  J.,  against 
the  opinion  of  the  other  judges,  that  it 
was  indispensable,  on  the  authority  of 
Fleta,  lib.  6,  c.  34 ;  Co.  Lit.  6  b :  Isack 
V.  Clarke,  1  Roll.  132;  James  v.  Trollop, 
Skin.  239 ;  2  Mod.  323  ;  Forbes  v.  Wale, 
1  W.  Bl.  532 ;  and  the  same  doctrine 
was  again  asserted  by  him,  in  delivering 
the  judgment  of  the  court,  in  Jackson  d. 


Burhans  v.  Blanshan,  3  Johns.  292,  298. 
See  also  Thompson  v.  Bullock,  1  Bay, 
364 ;  Middleton  v.  Mass,  2  Nott  &  McC. 
55 ;  Carroll  v.  Norwood,  1  Har.  &  J. 
174,  175  ;  Shaller  i-.  Brand,  6  Binn.  439  ; 
Doe  V.  Phelps,  9  Johns.  169,  171.  But 
the  weight  of  authority  at  present  seems 
clearly  the  other  way ;  and  it  is  now 
agreed,  that,  where  proof  of  possession 
cannot  be  had,  the  deed  may  be  read,  if  its 
genuineness  is  satisfactorily  established 
by  other  circumstances.  ISee  Ld.  Ean- 
cliffe  V.  Parkins,  6  Dow,  202,  per  Ld. 
Eldon ;  McKenire  v.  Frazer,  9  Yes.  5 ; 
Doe  V.  Passingham,  2  C.  &  P.  440  ;  Barr 
V.  Gratz,  4  Wheat.  213,  221 ;  Jackson  d. 
Lewis  V.  Laroway,  3  Johns.  Cas.  283,  287  ; 
Jackson  d.  Hunt  v.  Luquere,  5  Cowen, 
221,  225;  Jackson  d.  Wilkins  i'.  Lamb,  7 
Cowen,  431;  Hewlett  v.  Cock,  7  Wend. 
371,  373,  374;  Willson  v.  Belts,  4  Denio, 
201.  Where  an  ancient  document,  pur- 
porting to  be  an  exemplification,  is  i)ro- 
duced  from  the  proper  place  of  deposit, 
having  the  usual  slip  of  parchment  to 
which  the  great  seal  is  appended,  but  no 
appearance  that  any  seal  was  ever  aflixed, 
it  is  still  to  be  presumed  that  the  seal  was 
once  there  and  has  been  accidentally  re- 
moved, and  it  may  be  read  in  evidence  as 
an  exemplification.  Mayor,  &c.,  of  Bever- 
ley V.  Craven,  2  M.  &  Rob.  140. 


176 


LAW   OF  EVIDEifCE. 


[PAET  n. 


reputation  is  received,  in  regard  to  the  boundaries  of  parishes, 
manors,  and  the  like,  which  are  of  public  interest,  and  generally 
of  remote  antiquity,  yet,  by  the  weight  of  authority  and  upon 
better  reason,  such  evidence  is  held  to  be  inadmissible  for  the  pur- 
pose of  proving  the  boundary  of  a  private  estate,  when  such 
boundary  is  not  identical  with  another  of  a  public  or  quasi  public 
nature.^     Where  the  question  is  of  such  general  nature,  whether 


1  Ph.&  Am.  on  Evid.  255,  256;  supra, 
§  lo9  n.  (2)  ;  Thomas  y.  Jenkins,  1  N.  & 
V.  588;  Keed  v.  Jackson,  1  East,  355, 
357,  per  Ld.  Kenyon ;  Doe  v.  Thomas, 
14  East,  323;  Morewood  v.  Wood,  Id. 
327,  n. ;  Outram- v.  Morewood,  6  T.  R. 
121,  123,  per  Ld.  Kenyon;  Nichols  v. 
Parker,  and  Clothier  v.  Chapman,  in  14 
East,  331,  n.  ;  Weeks  v.  Sparke,  1  M.  & 
S.  088,  G89 ;  Dura  van  r.  Llewellyn,  15  Q. 
B.  791,  Exch.  Ch. ;  Clierry  v.  Bovd,  Litt. 
Sel.  Cas.  8,  9;  1  Phil.  Evid.  'l82  (3d 
Lond.  ed.),  cited  and  approved  by  Tilgh- 
man,  C.  J.,  in  Buchanan  v.  Moore,  10  S. 
&  R.  281.  In  the  passage  thus  cited,  the 
learned  author  limits  the  admissibilitj' 
of  this  kind  of  evidence  to  questions  of 
a  public  or  general  nature;  including  a 
right  of  common  by  custom  ;  which,  lie 
observes,  "is,  strictly  speaking,  a  private 
right;  but  it  is  a  <jeneral  right,  and  there- 
fore, so  far  as  regards  the  admissibility 
of  this  species  of  evidence,  has  been 
considered  as  public,  because  it  affects  a  large 
number  ofoccnpiers  within  a  district."  Supra, 
§§  128,' 138;  Gresloy  on  Evid.  220,221. 
And  more  recently,  in  England,  it  has 
been  decided,  upon  full  consideration,  that 
traditionary  evidence,  respecting  rights 
not  of  a  public  nature,  is  inadmissible. 
Dunraven  v.  Llewellyn,  15  Ad.  &  El.  n.  s. 
791.  The  admission  of  traditionary  evi- 
dence, in  casosf  of  boundary,  occurs  more 
frequently  in  the  United  States  tlian  in 
England.  By  far  the  greatest  portion  of 
our  territory  was  originally  surveyed  in 
large  masses  or  tracts,  owned  either  by 
the  State,  or  by  tlie  United  States,  or 
by  one,  or  a  company,  of  proprietors ; 
under  whose  authority  these  tracts  were 
again  surveyed  and  divided  into  lots  suit- 
able for  single  farms,  by  lines  crossing  the 
whole  tract,  and  serving  as  the  common 
boundary  of  very  many  farm-lots  l^'ing 
on  each  side  of  it.  So  that  it  is  hardly 
possible,  in  such  cases,  to  jjrove  the  origi- 
nal boundaries  of  oni'  farm,  without  affect- 
ing the  common  boimdary  of  many  ;  and 
thus,  in  trials  of  this  sort,  the  queslidn  is 
similar,  in  principle,  to  that  of  the  boun- 
daries of  a  manor,  and  tlieretbre  tradition- 
ary evidence  is  freely  admitted.     Such 


was  the  case  of  Boardman  v.  Reed,  6 
Peters,  328,  where  the  premises  in  ques- 
tion, being  a  tract  of  eight  tliousand  acres, 
were  part  of  a  large  connection  of  surveys, 
made  together,  and  containing  between 
fift}'  and  one  hundred  thousand  acres  of 
land;  and  it  is  to  such  tracts,  interesting 
to  very  many  persons,  that  the  remarks 
of  Mr.  Justice  M'Lean,  in  that  case 
(p.  341 ),  are  to  be  applied.  In  Conn  et  al. 
V.  Penn  et  al.,  1  Pet.  C.  C.  490,  tlie  tract 
whose  boundaries  were  in  controversy 
was  called  the  manor  of  Springetsbury, 
and  contained  seventy  thousand  acres, 
in  whicli  a  great  number  of  individuals 
had  severally  become  interested.  In 
Doe  d.  Taylor  v.  Roe  et  al.,  4  Hawks, 
116,  traditionary  evidence  was  admitted 
in  regard  to  Earl  Granvill's  line,  which 
was  of  many  miles  in  extent,  and  after- 
wards constituted  tlie  boundary  between 
counties,  as  well  as  private  estates.  lu 
Ralston  v.  Miller,  3  Randolj)!!,  44,  the 
question  was  upon  the  boundaries  of  a 
street  in  the  city  of  Richmond  ;  concern- 
ing wliich  kind  of  boundaries  it  was  said, 
that  ancient  reputation  and  possession 
were  entitled  to  infinitely  more  respect, 
in  deciding  upon  the  boundaries  of  the 
lots,  than  any  experimental  surveys.  In 
several  American  cases,  which  have  some- 
times been  cited  in  favor  of  the  admissi- 
bility of  traditionary  evidence  of  boun- 
dary, even  thougli  it  consisted  of  particular 
facts,  and  in  cases  of  merely  private  con- 
cern, the  evidence  was  clearly  admissible 
on  other  grounds,  either  as  part  of  the 
original  res  ijestxe,  or  as  the  declaration  of 
a  party  in  possession,  explanatory  of  the 
nature  and  extent  of  his  claim.  In  this 
class  may  be  ranked  the  (-ases  of  Caufman 
V.  The  ('ongregation  of  Cedar  Spring,  G 
Binn.  59;  Sturgeon  v.  Waugli,  2  Yeates, 
476;  Jackson  d.  McDonald  (.-.  McCall,  10 
Johns.  377  ;  Hamilton  v.  Minor,  2  S.  &  R. 
70;  Ili-rlev  I'.  Bidweli,9Coun.477  ;  Hall 
r.  Gittiugs.  2  Harr.  &  Johns.  112;  Red- 
ding '-.  McCubbin,  1  Har.  &  McIIen.  84. 
In  Wooster  v.  Butler,  13  Conn.  309,  it 
was  said  by  Church,  ,!.,  that  traditionary 
evidence  was  receival>le,  in  Connecticut,  to 
prove  the  boundaries  of  land  between  in- 


CHAP,  vn.] 


OF  ANCIENT   POSSESSIONS. 


177 


it  be  of  boundary  or  of  right  of  common  by  custom,  or  the  like, 
evidence  of  reputation  is  admitted  onl}-  under  the  qualifications 
already  stated,  requiring  competent  knowledge  in  the  declarants, 
or  persons  from  whom  the  information  is  derived,  and  that  they 


dividual  proprietors.  But  this  dictum 
was  not  called  for  in  the  case  ;  for  tlie 
question  was,  whether  there  had  anciently 
been  a  lii(/h)cai/  over  a  certain  tract  of  up- 
hind  ;  wliich,  being  a  subject  of  common 
and  general  interest,  was  clearly  within 
the  rule.  It  has,  however,  subsequently 
been  settled  as  a  point  of  local  law  in  that 
State,  that  such  evidence  is  admissible 
to  prove  private  boundaries.  Hinny  v. 
Farnswortli,  17  Conn.  355,  363.  In 
Petiiiffjlvaiiiii,  reputation  and  hearsay  are 
held  entitled  to  respect,  in  a  question  of 
boundary,  where  from  lapse  of  time  there 
is  great  difticulty  in  proving  the  existence 
of  the  original  landmarks.  Nieman  v. 
Ward,  1  \Vatts  &  Serg.  68.  In  Den  d. 
Tate  V.  Southard,  1  Hawks,  45,  the  ques- 
tion was,  whetlier  the  lines  of  the  sur- 
rounding tracts  of  land,  if  made  for  those 
tracts  alone,  and  not  for  the  tract  in  dis- 
pute, might  be  shown  by  reputation  to  be 
the  "known  and  visible  boundur'ies  "  of  the 
latter  tract,  within  the  fair  meaning  of 
those  words  in  tlie  statute  of  North  Caro- 
lina, of  1791,  c.  15.  It  was  objected  that 
the  boundaries  mentioned  in  the  act  were 
those  only  which  had  been  expressly  rec- 
ognized as  the  bounds  of  the  particular 
tract  in  question,  by  some  grant  or  mesne 
conveyance  thereof ;  but  the  objection  was 
overruled.  But  in  a  subsequent  case  ( Den 
d.  Sasser  v.  Herring,  3  Dever.  Law  Rep. 
310),  tlie  learned  chief-justice  admits,  that, 
in  that  State,  the  rules  of  theconnnon  law, 
in  questions  of  private  boundary,  iiave 
been  broken  in  upon.  "  We  have,"  he  re- 
marks, "  in  questions  of  boundary,  given 
to  the  single  declarations  of  a  deceased 
individual,  as  to  a  line  or  corner,  the 
weight  of  connnon  reputation,  and  per- 
mitted sucli  declarations  to  be  proven ; 
under  the  rule,  that,  in  questions  of  boun- 
dary, hearsay  is  evidence.  Whether  this 
is  within  the  spirit  and  reason  of  the  rule, 
it  is  now  too  late  to  inquire.  It  is  the 
well-established  law  of  this  State.  And  if 
the  propriety  of  the  rule  was  now  res 
intef/ra,  perhaps  the  necessity  of  the  case, 
arising  from  the  situation  of  our  country, 
and  the  want  of  self-evident  termini  of  our 
lands,  would  require  its  adoption.  For, 
although  it  sometimes  leads  to  falsehood, 
it  more  often  tends  to  the  establishment 
of  truth.  From  necessitj',  we  have,  in 
this  instance,  sacrificed  the  principles  upon 
*vhich  the  rules  of  evidence  are  founded." 


[Such  declarations  are  admissible  if  made 
by  persons  deceased,  while  in  possession 
of  land  owned  bj'  them,  and  in  the  act  of 
pointing  out  the  boundaries,  and  nothing 
appears  to  show  an  interest  to  misrepre- 
sent, Bartlett  v.  Emerson,  7  Gray  (Mass.), 
174;  but  not  otherwise.  Long  i*.  Col- 
ton,  lit)  Mass.  414.]  A  similar  course 
has  been  adopted  in  Tennessee.  Beard 
V.  Talbot,  1  Cooke,  142.  In  South 
Carolina,  tlie  declarations  of  a  deceased 
survej^or,  who  originally  surveyed  the 
land,  are  admissible,  on  a  question  as 
to  its  location.  Speer  v.  Coate,  3  Mc- 
Cord,  227;  Blythe  v.  Sutherland,  Id. 
258.  In  Kentucky,  the  latter  practice 
seems  similar  to  that  in  North  Carolina. 
Smith  V.  Nowells,  2  Littell,  159;  Smith 
V.  Prewitt,  2  A.  K.  Marsh.  155,  158.  In 
New  Hampshire,  the  like  evidence  has 
in  one  case  been  held  admissible,  upon  the 
alleged  authority  of  the  rule  of  the  com- 
mon law,  in  1  Phil.  Evid.  182  ;  but  in  the 
citation  of  the  passage  by  the  learned 
chief-justice,  it  is  plain,  from  the  omis- 
sion of  part  of  the  text,  that  the  restriction 
of  the  rule  to  subjects  of  public  or  general 
interest  was  not  under  his  consideration. 
Shepherd  v.  Thompson,  4  N.  H.  213, 
214.  More  recently,  however,  it  has 
been  decided  in  that  State, "  that  the  dec- 
larations of  deceased  persons,  who,  from 
their  situation,  appear  to  have  had  the 
means  of  knowledge  respecting  private 
boundaries,  and  who  had  no  interest  to 
misrepresent,  may  well  be  admitted  in 
evidence."  Great  Falls  Co.  v.  Worster, 
15  N.  H.  412,  437;  Smith  v.  Powers, 
Id.  546,  564.  [But  see  Wendell  v. 
Abbott,  45  N.  H.  349.]  Subject  to  these 
exceptions,  the  general  practice  in  this 
country,  in  the  admission  of  traditionary 
evidence  as  to  boundaries,  seems  to  agree 
with  the  doctrine  of  the  common  law  as 
stated  in  the  text.  In  Weems  v.  Disney; 
4  Har.  &  McHen.  156,  the  depositions 
admitted  were  annexed  to  a  return  of 
commissioners,  appointed  under  a  statute 
of  Maryland,  "  for  marking  and  bounding 
lands, "and  would  seem,  therefore,  to  have 
been  admissible  as  part  of  the  return,  wli  icli 
expressly  referred  to  them;  but  no  final 
decision  was  had  upon  the  point,  the  suit 
having  been  compromised.  In  Buchanan 
V.  Moore,  10  S.  &  R.  275,  the  point  was 
whether  traditionary  evidence  was  ad- 
missible while  the  declarant  was  living. 


12 


178 


LAW   OF   EVIDENCE. 


[PAUT  n. 


Le  persons  free  from  particular  and  direct  interest  at  the  time, 
and  are  since  deceased.^ 

§  146.  Perambulations.  In  this  connection  may  be  mentioned 
the  subject  of  perambulations.  The  writ  de  perambulatione  faci- 
endd  lies  at  common  law,  when  two  lords  are  in  doubt  as  to 
tlie  limits  of  their  lordships,  villas,  &c.,  and  by  consent  appear 
in  chancery,  and  agree  that  a  perambulation  be  made  between 
them.  Their  consent  being  enrolled  in  chancery,  a  writ  is 
directed  to  the  sheriff  to  make  the  perambulation,  by  the  oaths 
of  a  jurj^  of  twelve  knights,  and  to  set  up  the  bounds  and  limits, 
in  certainty,  between  the  parties.^  These  proceedings  and  the 
return  are  evidence  against  the  parties  and  all  others  in  privity 
with  them,  on  grounds  hereafter  to  be  considered.  But  the  per- 
ambulation consists  not  only  of  this  higher  written  evidence,  but 
also  of  the  acts  of  the  persons  making  it,  and  their  assistants, 
such  as  marking  boundaries,  setting  up  monuments,  and  the  like, 
including  their  declarations  respecting  such  acts,  made  during 
the  transactions.  Evidence  of  what  these  persons  were  heard  to 
say  upon  such  occasions  is  always  received ;  not,  however,  as 
hearsay,  and  under  any  supposed  exception  in  favor  of  questions 
of  ancient  boundary,  but  as  part  of  the  res  gestce,  and  explanatory 
of  the  acts  themselves,  done  in  the  course  of  the  ambit.^  Indeed, 
in  the  case  of  such  extensive  domains  as  lordships,  they  being 
matters  of  general  interest,  traditionary  evidence  of  common 
fame  seems  also  admissible  on  the  other  grounds  which  have 
been  previously  discussed.* 


By  the  Roman  law,  traditionary  evi- 
dence of  common  fame  seems  to  liave  been 
deemed  admissible,  even  in  matters  of 
private  boundary.  Mascard.  De  Probat. 
vol.  i.  p.  Z'.)\,  Concl.  3!)0. 

1  Supra,  §§128-130,  135-137.  It  is 
held  in  New  York,  that,  in  ascertaining 
fiicts  relative  to  the  possession  of  and 
title  to  lands,  wliich  occurred  more  than  a 
century  before  the  time  of  trial,  evidence 
is  aduiissible  which,  in  regard  to  recent 
events,  could  not  be  received;  such  as 
liistories  of  established  credit  as  to  public 
transactions;  the  recitals  in  public  records, 
statutes,  legislative  journals,  and  ancient 
grants  and  charters  ;  judicial  records  ;  an- 
cient maps,  and  dejiositions,  and  the  like. 
But  it  is  admitted  that  this  evidence  is 
always  to  be  received  with  great  caution, 
and  with  due  allowance  for  its  imperfi'C- 
tion,  and  its  capability  of  misleading.    Eo- 


gardus  v.  Trinity  Church,  Kinney's  Law 
Compend.  for  1850,  p.  159.  [See  also,  as  to 
the  admissibility  of  ancient  maps  and  sur- 
veys, Ross  V.  Rhoads,  15  Penn.  St.  1(13 ; 
Penny  Pot  Landing  v.  Philadelphia,  Ui  Id. 
79 ;  Whitehouse  v.  Bickford,  'J  Foster, 
471;  Adams  v.  Stanyan,  4  Id.  405  ;  Dan- 
iel V.  Wilkin,  12  English  Law  &  Eq. 
547.] 

2  5  Com.  Dig.  732,  Pleader,  3  G.  ;  F. 
N.  B.  [133]  D.;  1  Story  on  Eq.  Jurisp. 
§  611.  See  also  Stat.  13  Geo.  III.  c.  81, 
§  14;  Stat.  41  Geo.  III.  c.  81,  §  14;  Stat. 
68  Geo.  III.  c.  45,  §  10. 

8  Weeks  v.  Sparke,  1  M.  &  S.  687,  per 
Ld.  Ellenborougli ;  supra,  §  108;  EUicott 
V.  Pearl,  1  McLean,  211. 

i  Supra,  §§  128-137.  The  writ  de  per- 
nmliuhttione  /iiciiiida  is  not  kiu)wn  to  havo 
been  adopted  in  practice  in  the  United 
States  ;  but  in  several  of  the  States,  rcme- 


CHAP,  vn.] 


OF  ANCIENT  POSSESSIONS. 


179 


dies  somewhat  similar  in  principle  have 
been  provided  by  statutes.  In  some  of  the 
States,  provision  is  only  made  for  a  peri- 
odical perambulation  of  the  boundaries 
of  towns  by  the  selectmen,  LL.  Maine 
Rev.  1840,  c.  5;  LL.  N.  H.  1842,  c. 
37 ;  Mass.  Rev.  Stats,  c.  15 ;  LL.  Conn. 
Rev.  1849,  tit.  3,  c.  7 ;  or,  for  a  definite 
settlement  of  controversies  respecting 
them,  by  the  public  surveyor,  as  in  New 
York,  Rev.  Code,  pt.  i.  c.  8,  tit.  6.  In 
others,  the  remedy  is  extended  to  the 


boundaries  of  private  estates.  See  Elmer's 
Digest,  pp.  98,  99,  315.316  ;  New  Jersey, 
Rev.  St.  1846,  tit.  22,  e.  12;  Virginia, 
Rev.  Code,  1819,  vol.  i.  pp.  358,  359.  A 
very  complete  summary  remedy,  in  all 
eases  of  disputed  boundary,  is  provided 
in  the  statutes  of  Delaware,  Revision  of 
1829,  pp.  80,  81,  tit.  Boundaries,  III.  To 
perambulations  made  under  any  of  tliese 
statutes,  the  principles  stated  m  the  text, 
it  is  conceived,  will  apply. 


180  LAW  OF  EVIDENCE.  [PAE,T  II. 


CHAPTER  VIII. 

OF  DECLARATIONS  AGAINST  INTEREST. 

§  147.  Declarations  against  interest.  A  third  exception  to  tlie 
rule,  rejecting  hearsay  evidence,  is  allowed  in  the  case  of  declara- 
tions and  entries  made  hy  persons  since  deceased,  and  against  the 
interest  of  the  persons  making  them,  at  the  time  when  they  were 
made.  We  have  already  seen,i  that  declarations  of  third  persons, 
admitted  in  evidence,  are  of  two  classes :  one  of  which  consists 
of  written  entries,  made  in  the  course  of  official  duty  or  of  pro- 
fessional employment;  where  the  entry  is  one  of  a  number  of 
facts  which  are  ordinary  and  usually  connected  with  each  other, 
so  that  the  proof  of  one  affords  a  presumption  that  the  others 
have  taken  place ;  and,  therefore,  a  fair  and  regular  entry,  such 
as  usually  accompanies  facts  similar  to  those  of  which  it  speaks, 
and  apparently  contemporaneous  with  them,  is  received  as  original 
presumptive  evidence  of  those  facts.  And,  the  entry  itself  being 
original  evidence,  it  is  of  no  importance,  as  regards  its  admissi- 
bility, whether  the  person  making  it  be  yet  living  or  dead.  But 
declarations  of  the  other  class,  of  which  we  are  now  to  speak,  are 
secondary  evidence,  and  are  received  only  in  consequence  of  the 
death  of  the  person  making  them.  This  class  embraces  not  only 
entries  in  books,  but  all  other  declarations  or  statements  of  facts, 
whether  verbal  or  in  writing,  and  whether  they  were  made  at  the 
time  of  the  fact  declared  or  at  a  subsequent  day.^  But,  to  render 
them  admissible,  it  must  appear  that  the  declarant  is  deceased ; 
that  he  possessed  competent  knowledge  of  the  facts,  or  that  it 
was  his  duty  to  know  them  ;  and  that  the  declarations  were  at 
variance  with  his  interest.^    When  these  circumstances  concur, 

1  Supra,  ^^  115,  116,  and  cases  there  303;  Goss  w.  Watlington,  3  Brod.  &  Bing. 

cited.  132  ;  Strode  v.  Winchester,  1  Dick.  397  ; 

-  Ivat  «;.  Finch,  1  Taunt.  141 ;  Doe  v.  Barker  v.  Ray,  2  Uuss.  63,  76,  and  cases 
Jones,  1  Campb.  367 ;  Davies  f.  Pierce,  2  in  p.  67,  n. ;  Warren  v.  Greenville,  2 
T.  R.  63,  and  Holloway  v.  Raikes,  there  Stra.  1120;  8.  c.  2  Burr.  1071, 1072;  Doe 
cited  ;  Doe  v.  Williams,  Cowp.  621 ;  v.  Turford,  3  B.  &  Ad.  898,  per  Parke,  J. ; 
Peaceable  v.  Watson,  4  Taunt.  16;  Stan-  Harrison  v.  Blades,  3  Campb.  457;  Man- 
ley  V.  White,  14  East,  3:32,  341,  per  Ld.  ning  v.  Leachmere,  1  Atk.  453. 
EUenborough;  Haddow  v.  Parry,  3  Taunt.  »  Short  v.  Lee,  2  Jac.  &  Walk.  464, 


CHAP,  ym.]      OF  DECLARATIONS  AGAINST  INTEEEST. 


181 


the  evidence  is  received,  leaving  its  weight  and  value  to  be  deter- 
mined by  other  considerations. 

§  148.  Ground  of  their  admissibiUty.  The  ground  upon  which 
this  evidence  is  received,  is  the  extreme  improhahility  of  its  falsehood. 
The  regard  which  men  usually  pay  to  their  own  interest  is  deemed 
a  sufficient  security,  both  that  the  declarations  were  not  made 
under  any  mistake  of  fact,  or  want  of  information  on  the  part  of 
the  declarant,  if  he  had  the  requisite  means  of  knowledge,  and 
that  the  matter  declared  is  true.  The  apprehension  of  fraud  in 
the  statement  is  rendered  still  more  improbable  from  the  circum- 
stance, that  it  is  not  receivable  in  evidence  imtil  after  the  death 
of  the  declarant ;  and  that  it  is  always  competent  for  the  party 
against  whom  sucli  declarations  are  adduced  to  point  out  any 
sinister  motive  for  making  them.  It  is  true,  that  the  ordinary 
and  highest  tests  of  the  fidelity,  accuracy,  and  completeness  of 
judicial  evidence  are  here  wanting :  but  their  place  is,  in  some 
measure,  supplied  by  the  circumstances  of  the  declarant ;  and 
the  inconveniences  resulting  from  the  exclusion  of  evidence, 
having  such  guaranties  for  its  accuracy  in  fact,  and  from  its 
freedom  fi-om  fraud,  are  deemed  much  greater,  in  general,  than 
any  which  would  probably  be  experienced  from  its  admission.^ 

§  149.  Must  be  against  interest.     In  some  cases,  the  courts  seem 


488,  per  Sir  Thomas  Plumer,  M.  R;  Doe 
V.  Robson,  15  East,  32,  34;  Higham  v. 
Eidgwav,  10  East,  109,  per  Ld.  Ellen- 
borough;  Middleton  v.  Melton,  10  B.  &  C. 
317,  327,  per  Parke,  J. ;  Regina  v.  Worth, 
4  Ad.  &  El.  jr.  s.  137,  per  Ld.  Denman  ; 
2  Smith's  Lead.  Gas.  193,  n.,  and  cases 
there  cited  ;  Spargo  v.  Brown,  9  B.  & 
C.  935  [Percival  v.  Nanson,  21  L.  J. 
N.  8.  Exch.  1].  The  interest  with  which 
the  declarations  were  at  variance  must 
be  of  a  pecuniary  nature.  Davis  v.  Lloyd, 
1  C.  &  K.  276.  [The  amount  of  interest  is 
immaterial  on  the  question  of  admissi- 
bility. Orrett  v.  Corser,  21  Beav.  62. 
But  the  mere  making  a  contract  is  not 
necessarily  against  interest  from  the  fact 
that  the  party  is  obliged  thereby.  Reg. 
V.  Worth,  4  Q.  B.  132.]  Tlie  apprehen- 
sion of  possible  danger  of  a  prosecution 
is  not  sufficient.  The  Sussex  Peerage 
Case,  11  Clark  &  Fin.  85.  In  Holladay 
r.  Littlepage,  2  Munf.  316,  the  joint  dec- 
larations of  a  deceased  shipmaster  and 
the  living  owner,  that  the  defendant's 
passage-money  had  been  paid  by  the 
plaintiff,  were  held  admissible,  as  parts 


of  the  res  gestae,  being  contemporaneoufl 
witli  the  time  of  sailing.  This  case, 
therefore,  is  not  opposed  to  the  others 
cited.  Neither  is  Sherman  v.  Crosby,  11 
Johns.  70,  where  a  receipt  of  payment  of 
a  judgment  recovered  by  a  third  person 
against  the  defendant  was  held  admissi- 
ble in  an  action  for  the  money  so  paid,^^ 
by  the  party  paying  it,  lie  having  had  ^ 
authority  to  adjust  the  demand,  and  the 
receipt  being  a  documentary  fact  in  the 
adjustment;  though  the  attorney  who 
signed  the  receipt  was  not  produced,  nor 
proved  to  be  dead.  In  auditing  the  ac- 
counts of  guardians,  administrators,  &c., 
the  course  is,  to  admit  receipts  as  prima 
facie  sufficient  vouchers.  Shearman  v. 
Akins,  4  Pick.  283 ;  Nichols  v.  Webb,  8 
Wheat.  326 ;  Welsh  v.  Barrett,  15  ALass. 
380;  Wilbur  v.  Selden,  6  Cowen,  1(52; 
Farmers'  Bank  v.  Whitehill,  16  S.  &  R. 
89,  90 ;  Stokes  v.  Stokes,  6  Martin,  n.  s. 
351. 

1  Phil.  &  Am.  on  Evid.  307,  308 ;  1 
Phil.  Evid.  293,  294  ;  Gresley  on  Evid. 
221  [Bird  v.  Hueston,  10  Critclifield 
(Oliio),  418]. 


182  '        LAW  OF  EVIDENCE.  [PAET  U. 

to  have  admitted  this  evidence,  without  requiring  proof  of  adverse 
interest  in  the  declarant ;  while  in  others  stress  is  laid  on  the  fact, 
that  such  interest  had  already  appeared,  aliunde,  in  the  course  of 
the  trial.  In  one  case  it  was  argued,  upon  the  authorities  cited, 
that  it  was  not  material  that  the  declarant  ever  had  any  actual 
interest,  contrary  to  his  declaration ;  but  this  position  was  not 
sustained  by  the  court. ^  In  many  other  cases,  where  the  evi- 
dence consisted  of  entries  in  books  of  account,  and  the  like,  they 
seem  to  have  been  clearly  admissible  as  entries  made  in  the  ordi- 
nary course  of  business  or  duty,  or  parts  of  the  res  gestce,  and 
therefore  as  original  and  not  secondary  evidence ;  though  the 
fact  that  they  were  made  against  the  interest  of  the  person 
making  them  was  also  adverted  to.^  But  in  regard  to  declara- 
tions in  general,  not  being  entries  or  acts  of  the  last-mentioned 
character,  and  which  are  admissible  only  on  the  ground  of  having 
been  made  contrary  to  the  interest  of  the  declarant,  the  weight 
6f  authority,  as  well  as  the  principle  of  the  exception  we  are 
considering,  seem  plainly  to  require  that  such  adverse  interest 
should  appear,  either  in  the  nature  of  the  case  or  from  extraneous 
proof. ^  And  it  seems  not  to  be  sufficient,  that,  in  one  or  more 
points  of  view,  a  declaration  may  be  against  interest,  if  it  appears, 
upon  the  whole,  that  the  interest  of  the  declarant  would  be  rather 
promoted  than  impaired  by  the  declaration.^ 

§  150.  Entries  in  books  of  account.  Though  the  exception  we 
are  now  considering  is,  as  we  have  just  seen,  extended  to  decla- 
rations of  any  kind,  yet  it  is  much  more  frequently  exemplified 

1  Barker  v.  Ray,  2  Russ.  63,  G7,  68,  of  such  evidence  in  the  case  was  disposed 

cases  cited  in  note;  Id.  p.  76.     Upon  tiiis  of  in  another  manner, 
point,    Eldon,    Lord    Cliancellor,    said  :  -  It    has    been    questioned,    wh.ether 

"  Tlie  cases  satisfy  me,  that  evidence  is  there  is  any  difference  in  the  princij)Ie  of 

admissible  of  declarations  made  by  per-  admissibility  between  a  written  entry  and 

sons  who  have  a  competent  knowledjje  an  oral  declaration  of  an  agent  concern- 

of  the  subject  to  which  such  declarations  ing  his  having  received  money  for  his 

refer,  and   where   their   interest  is   con-  principal.     See  s((/<m,  §  113,  n. ;  Fursdon 

cerned;  and  the  only  doubt  I  have  enter-  v.  Clogg,  10  M.  &  \V.  672  ;  infra,  §  162,  n. 
tained  was  as  to  the  position  that  you  ^  liigham  r.   Ridgway,  10  East,  10!); 

are  to  receive  evidence  of  declarations  Warren  v.  Greenvilic,  2  Stra.   1129,  ex- 

where  there  is  no  interest.     At  a  certain  pounded  by  Lord  Mansfield,  in  2  Burr. 

^  period  of  my  professional  life,  I  should  1071,  1072;"  Gleadow  v.  Atkin,  .'3  Tyrwli. 

have  said   that  this   doctrine  was  quite  3U2,  303;  1   Cromp.  &   Mees.  423,' 424; 

new  to  me.     I  do  not  mean  to  say  more  Short  i-.  Lee,  2  Jac  &  W.  4y!»;  Marks  v. 

than    that   I   still   doubt    concerning    it.  Lahee,   .3    Bing.    N.   C.    408,    420,    per 

When   I   have   occasion   to  express  my  I'arke,  J. ;  Barker  c.  Ray,  2  Russ.  63,  76; 

opinion  judicially  upon  it,  I  will  do  so  ;  supra,  §  147,  and  cases  in  notes, 
but   I   desire    not   to   be    considered    as  *  riiil.  &  Am.  on  Evid.  320;  1  Phil, 

bound  by   that,  as  a  rule  of  evidence."  Evid.  305,  306;  Short  v.  Lee,  2  Jac.  & 

The  objection  arising  from  the  rejection  W.  464. 


CHAP.  Vni.]      OF   DECLARATIONS   AGADSTST   IKTEREST. 


183 


in  documentary  evidence,  and  particularly  in  entries  in  books  of 
account.  Where  these  are  books  of  collectors  of  taxes,  stewards, 
bailiffs,  or  receivers,  subject  to  the  inspection  of  others,  and  in 
which  the  first  entry  is  generally  of  money  received,  charging 
the  party  making  it,  they  are,  doubtless,  within  the  principle  of 
the  exception.^  But  it  has  been  extended  still  farther,  to  include 
entries  in  private  hooks  also,  though  retained  within  the  custody 
of  their  owners :  their  liability  to  be  produced  on  notice,  in  trials^ 
being  deemed  sufficient  security  against  fraud ;  and  the  entry 
not  being  admissible,  unless  it  charges  the  party  making  it  with 
the  receipt  of  money  on  account  of  a  third  person,  or  acknowledges 
the  payment  of  money  due  to  himself  ;  in  either  of  which  cases  it 
would  be  evidence  against  him,  and  therefore  is  considered  as 
sufficiently  against  his  interest  to  bring  it  within  this  exception.^ 
The  entry  of  a  mere  memorandum  of  an  agreement  is  not  suffi- 
cient. Thus,  where  the  settlement  of  a  pauper  was  attempted 
to  be  proved  by  showing  a  contract  of  hiring  and  service,  the 
books  of  his  deceased  master,  containing  minutes  of  his  contracts 
with  his  servants,  entered  at  the  time  of  contracting  with  them, 
and  of  subsequent  payments  of  .their  wages,  were  held  inadmissi- 
ble ;  for  the  entries  were  not  made  against  the  writer's  interest, 
for  he  would  not  be  liable  unless  the  service  were  performed,  nor 
were  they  made  in  the  course  of  his  duty  or  employment.^ 


1  Barry  v.  Bebbington,  4  T.  R.  514 ; 
Goss  V.  Watlington,  \^  Brod.  &  Bing.  182; 
Middleton  v.  Melton,  10  B.  &  C.  317; 
Stead  V.  Heaton,  4  T.  R.  669 ;  Short  v. 
Lee,  2  Jac.  &  W.  464;  Whitmarsh  v. 
George,  8  B.  &  C.  556;  Dean,  &c.,  of  VAj 
V.  Caldecott,  7  Bing.  433 ;  Marks  v.  La- 
hee,  3  Bing.  N.  ^C.  408;  Wynne  v. 
Tyrwhitt,  4  B.  &  Aid.  376 ;  De  Rutzen  v. 
Farr,  4  Ad.  &  El.  52;  2  Smith's  Lead. 
Cas.  193,  n. ;  Plaxton  v.  Dare,  10  B.  &  C. 
17,  19;  Doe  v.  Cartwright,  Ry.  &  M.  62. 
An  entry  by  a  steward  in  his  books,  in 
his  own  favor,  unconnected  with  otlier 
entries  against  him,  is  held  not  admissi- 
ble to  prove  the  facts  stated  in  such 
entry.  Knight  v.  Marquis  of  Waterford, 
4  Y.  &  C.  284.  But  where  the  entry  goes 
to  show  a  general  balance  in  his  own 
favor,  it  has  been  ruled  not  to  affect  the 
admissibility  of  a  particular  entry  charg- 
ing himself.  Williams  v.  Geaves,  8  C.  & 
P.  592  [Rowe  v.  Brenton,  3  M.  &  U.  268]. 
And  see  Musgrave  r.  Emerson,  16  Law 
Jour.  Q.  B.  174.  [An  ancient  book, 
kept  among  the  records  of  a  town,  pur- 


porting to  be  the  "  Selectmen's  book  of 
accounts  with  the  treasury  of  the  town," 
is  admissible  in  evidence  of  tlie  facts 
therein  stated  ;  and,  the  selectmen  being 
at  the  same  time  assessors,  an  entry  in 
such  book  of  a  credit  by  an  order  in 
favor  of  the  collector  for  a  discount  of  a 
particular  individual's  taxes  was  held  to 
be  evidence  of  the  abatement  of  the  tax 
of  such  individual.  Boston  v.  Wey- 
mouth, 4  Gush.  538. j 

2  Warren  v.  Greenville.  2  Stra.  1029 ; 
s.  c.  2  Burr.  1071,  1072;  Higham  v.  Ridg- 
way,  10  East,  109  ;  INIiddleton  v.  Melton, 
10  liarn.  &  Cress.  317.  In  those  States 
of  the  Union  in  which  the  original  entries 
of  the  part}',  in  his  own  account  books, 
may  be  evidence  for  liim,  and  where, 
therefore,  a  false  entry  may  sometimes 
amount  to  the  crime  of  forgery,  there  is 
much  stronger  reason  for  admitting  the 
entries  in  evidence  against  third  persons. 
See  also  Hoare  v.  Coryton,  4  Taunt.  560. 

3  Kegina  v.  Worth,  4  Ad.  &  El.  n.  s. 
132. 


184  LAW   OF  EVIDENCE.  [PAET  H. 

§  151.  Admissible,  though  the  entry  itself  is  the  only  evidence  of 
the  charge.  Where  the  entry  is  itself  the  only  evidence  of  the 
charge,  of  which  it  shows  the  subsequent  liquidation,  its  admis- 
sion has  been  strongly  opposed,  on  the  ground,  that,  taken 
together,  it  is  no  longer  a  declaration  of  the  party  against  his 
interest,  and  may  be  a  declaration  ultimately  in  his  own  favor. 
This  point  was  raised  in  the  cases  of  Higham  v.  Ridgivay,  where 
an  entry  was  simply  marked  as  paid  in  the  margin  ;  and  of  Bowe 
V.  Brenton,  which  was  a  debtor  and  creditor  account,  in  a  toller's 
books,  of  the  money  received  for  tolls,  and  paid  over.  But  in 
neither  of  these  cases  was  the  objection  sustained.  In  the  former, 
indeed,  there  was  evidence  aliunde,  that  the  service  charged  had 
been  performed ;  but  Lord  Ellenborough,  though  he  afterwards 
adverted  to  this  fact,  as  a  corroborating  circumstance,  first  laid 
down  the  general  doctrine  that  "  the  evidence  was  properly  ad- 
mitted, upon  the  broad  principle  on  which  receivers'  books  have 
been  admitted."  But  in  the  latter  case  there  was  no  such  proof; 
and  Lord  Tenterden  observed,  that  almost  all  the  accounts  which 
were  produced  were  accounts  on  both  sides,  and  that  the  objec- 
tion would  go  to  the  very  root  of  that  sort  of  evidence.  Upon 
these  authorities,  the  admissibility  of  such  entries  may  perhaps  be 
considered  as  established.^  And  it  is  observable,  in  corroboration 
of  their  admissibility,  that  in  most,  if  not  all,  of  the  cases,  they 
appear  to  have  been  made  in  the  ordinary  course  of  business  or 
of  duty,  and  therefore  were  parts  of  the  re8  gestce? 

§  152.  Matters  not  against  interest.  It  has  also  been  questioned, 
whether  the  entry  is  to  be  received  in  evidence  of  matters  which, 

1  Higham  v.  "Ridgway,  10  East,  109 ;  entry   in   the    tradesman's    book.      The 

Rowe  V.  IJrenton,  3  Man.  &  II.  :i07 ;  2  same  objection,  indeed,  was  takon  here, 

Smith's  Lead.  Cas.  100,  n.     In  Williams  by  the  learned  counsel  for  the  defendant, 

i;.  Geaves,  8  C.  &  V.  502,  the  entries  in  as  in  the  cases  of  Higham  v.  Hidgway, 

a  deceased  stew.ird's  acco\int  were  ad-  and  of  Rowe  v.  Brenton;  namely,  that 

mitted,  though  the  balance  of  the  account  the   proof,  as   to   interest,  was  on   both 

was  in  his  favor.     See  also  Doe  i'.  Tyler,  sides,   and   neutralized   itself  :    but    tlie 

4  M.  &  P.  877,  there  cited.     Doe  v.  Whit-  objection  was  not  particularly  noticed  by 

comb,  15  Jur.  778.  Littledale,  J.,  before  whom  it  was  tried; 

-  In  Dowe  V.  Vowles,  1  M.  &  Rob.  2G1,  though  the  same  learned  judge  afterward 

the  evidence  offered  was  merely  a  trades-  intimated  his  opinion,  by  observing,  in 

man's  hill,  receipted  in  full ;  which  was  rejily  to  an  objection  similar  in  principle, 

properly  rejected  by  I-ittledale,  J.,  as  it  in  Kowe  v.  Brenton,  that  "a  man  is  not 

liad  not  the  merit  of  an  original  entry :  likely  to  charge  himself,  for  the  j)urpose 

for,  tiiough  the  receijit  of  payment  was  of  getting  a  discharge."     [In  Doe  v.  Bur- 

against  the  party's  interest,  yet  the  main  ton,  0  C.  &  V.  254,  Mr.  Baron  Gurney 

fact  to  be  established  was  the  perform-  seems  to  have  followed  Doe  v.  Vowles ; 

ance  of  the  services  charged  in  the  bill,  but  neither  would  now  probably  be  fol- 

the  appearance  of   which  denoted  that  lowed  in  England.     Taylor,  Evid.  §  010.] 

better  evidence  existed,  in  the  original  See  also  infm,  §  152. 


CHAP.  Vin.]      OF   DECLAEATIONS   AGAIXST   INTEREST.  185 

though  forming  part  of  the  declaration^  were  not  in  themselves 
agaiiist  the  interest  of  the  declarant.  This  objection  goes  not 
only  to  collateral  and  independent  facts,  but  to  the  class  of  entries 
mentioned  in  the  preceding  section  ;  and  would  seem  to  be  over- 
ruled b}'  those  decisions.  But  the  point  was  solemnly  argued  in 
a  later  case,  where  it  was  adjudged  that  though,  if  the  point 
were  now  for  the  first  time  to  be  decided,  it  would  seem  more 
reasonable  to  hold  that  the  memorandum  of  a  receipt  of  payment 
was  admissible  only  to  the  extent  of  proving  that  a  payment  had 
been  made,  and  the  account  on  which  it  had  been  made  giving 
it  the  effect  only  of  verbal  proof  of  the  same  pajonent ;  yet,  that 
the  authorities  had  gone  beyond  that  limit,  and  the  entry  of  a 
payment  against  the  interest  of  the  party  making  it  had  been 
held  to  have  the  effect  of  proving  the  truth  of  other  statements 
contained  in  the  same  entry,  and  connected  with  it.  Accordingly, 
in  that  case,  where  three  persons  made  a  joint  and  several  promis- 
sory note,  and  a  partial  payment  was  made  by  one  which  was 
indorsed  upon  the  note  in  these  terms,  "  Received  of  W.  D.  the 
sum  of  £280,  on  account  of  the  within  note,  the  £300"  (which 
was  the  amount  of  the  note)  "  having  been  originally  advanced  to 
E.  5".,"  for  which  payment  an  action  was  brought  by  the  party 
paying,  as  surety,  against  E.  H.,  as  the  principal  debtor ;  it  was 
held,  upon  the  authority  of  Higham  v.  Ridgway,  and  of  Doe  v. 
Rohson,  that  the  indorsement,  the  creditor  being  dead,  was  ad- 
missible in  evidence  of  the  whole  statement  contained  in  it ;  and, 
consequently,  that  it  was  i^rima  facie  proof,  not  only  of  the  pay- 
ment of  the  money,  but  of  the  person  who  was  the  principal 
debtor,  for  whose  account  it  was  paid ;  leaving  its  effect  to  be 
determined  by  the  jury.^ 

1  Davies  r.  Humphrevs,  6  Mees.  &  fore,  though  evidence  of  the  fact  of  the 
Welsh.  15o,  166.  See  also  Stead  v.  Hea-  arrest,  it  was  held  to  he  no  evidence  of 
ton,  4  T.  R.  669;  Roe  v.  Rawlings,  7  the  place  where  the  arrest  was  made, 
East,  279  ;  Marks  v.  Lahee,  3  Bing.  though  this  was  stated  in  the  return.  The 
N.  C.'iOS.  The  case  of  Chambers  v.  Ber-  learned  counsel  also  endeavored  to  main- 
nasconi,  1  Cr.  &  Jer.  451,  1  Tyrwh.  33-5,  tain  the  admissibility  of  the  under-slier- 
which  may  seem  opposed  to  these  deci-  iff's  return,  in  proof  of  the  place  of 
sions,  turned  on  a  different  principle,  arrest,  as  a  written  declaration  by  a 
That  case  involved  the  effect  of  an  un-  deceased  person  of  a  fact  against  his 
der-sheriff's  return,  and  the  extent  of  the  interest ;  but  the  court  lield,  that  it  did 
circumstances  which  the  sheriff's  return  not  belong  to  that  class  of  cases.  1 
ouglit  to  include,  and  as  to  which  it  would  Tyrwh.  33.3,  per  Bayley,  B.  Afterwards, 
be  conclusive  evidence.  It  seems  to  have  tliis  judgment  was  affirmed  in  the  Ex- 
been  considered,  that  the  return  could  chequer  Chamber,  4  TyrAvh.  531 ;  1  Cr. 
properly  narrate  only  those  things  which  Mees.  &  Ros.  347,  368 ;  the  court  being 
it  was  the  officer's  duty  to  doj  and,  there-  "all  of  opinion,  that  whatever  effect  may 


186  LAW   OF  EVIDENCE.  [PAKT  H. 

§  153.  Competency  of  declarant.  In  order  to  render  declara- 
tions against  interest  admissible,  it  is  not  necessary  that  the  decla- 
rant should  have  been  competent^  if  living,  to  testify  to  the  facts 
contained  in  the  declaration  ;  the  evidence  being  admitted  on 
the  broad  ground,  that  the  declaration  was  against  the  interest 
of  the  party  making  it,  in  the  nature  of  a  confession,  and,  on  that 
account,  so  probably  true  as  to  justify  its  reception.^  For  the 
same  reason,  it  does  not  seem  necessary  that  the  fact  should  have 
been  stated  on  the  personal  knowledge  of  the  declarant.^  Neither 
is  it  material  whether  the  same  fact  is  or  is  not  provable  by  other 
witnesses  who  are  still  living.^  Whether  their  testimony,  if 
produced,  might  be  more  satisfactory,  or  its  non-production,  if 
attainable,  might  go  to  diminish  the  weight  of  the  declarations, 
are  considerations  for  the  jury,  and  do  not  affect  the  rule  of 
law. 

§  154.  Entries  by  agents,  stewards,  &c.  But  where  the  C'V'idence 
consists  of  entries  made  by  persons  acting  for  others,  in  the 
capacity  of  agents,  stetvards,  or  receivers,  some  proof  of  such 
agency  is  generally  required  previous  to  their  admission.  The 
handwriting,  after  thirty  years,  need  not  be  proved."^  In  regard 
to  the  proof  of  official  character,  a  distinction  has  been  taken 
between  public  and  private  offices,  to  the  effect  that,  where  the 
office  is  public  and  must  exist,  it  may  ahvays  be  presumed  that  a 
person  who  acts  in  it  has  been  regularly  appointed ;  but  that, 
where  it  is  merely  private,  some  preliminary  evidence  must  be 
adduced  of  the  existence  of  the  office,  and  of  the  appointment  of 

be  due  to  an  entry,  made  in  the  course  of  where  it  was  marie  merely  in  the  course 

any  office,  reporting  facts  necessary  to  of  a  man's  duty,  it  does  not  go  beyond 

the  performance  of  a  duty,  tlie  statement  tlie   matters   wliich   it   was  his    duty  to 

of   other   circumstances,    liowever  natu-  enter.      Pcrcival  v.  Nanson,  7  Eng.  Law 

rally  they  may  be  thought  to  find  a  place  &  Eq.  538,  per  Pollock,  C  B. ;   s.  c.  7 

in  the  narrative,  is   no  i)roof  of   tliose  Excii.  1. 

circun)stances."     See  also  Thompson  i*.  ^  Doe  v.  Robson,  15  East,  32 ;  Short 

Stevens,  2  Nott  &  McC.  4!)3  ;  Sherman  v.  v.  Lee,  2  Jac.  &  W.  4(54,  480 ;    Glcadow 

Crosby,  11  Johns.  70.     Whether  a  verbal  v.  Atkin,  1  Cr.  &  Mecs.  410  ;  Middleton  v. 

declaration  of  a  deceased  agent  or  officer,  Melton,   10  B.  &  C.  317,  320;    Bosworth 

made  while  lie  was  paying  over  money  to  v.  Crotchet,  Pii.  &  Am.  on  Evid.  o48,  n. 
his  princii)al  or  superior,  and  designating  ^  Crease  v.  Barrett,  1   Cr.  Mees.  &  R. 

the  i)erson  from  whom  he  received  a  par-  910. 

ticular  sum  entered  by  him  in  his  books,  3  Middleton  i;.  Melton,  16  B.  &  C.  327, 

is  admissible  in  evidence  against  that  per-  per  Parke,  J.;   Barry  v.  Bebbington,  4 

son,  qiKvrc ;  and  see  Fursdon  r.  Clogg,  10  T.  R.  514. 

M.  &  W.  572.    The  true  distinction,  more  *   Wynne  r.  Tyrwhift,  4  B.  &  Aid.  876. 

recently  taken,  is  tliis,  —  tiiat  wiiorc   the  [Though  not  in  the  declarant's  handwrit- 

entry  is  admitted  as  being  against  the  ing,  they  are  admissible  if  authorized  or 

interest  of  tiie  party  making  it,  it  carries  adopted  by  him  ;  otherwise  not.     Baron 

with  it  the  whole  statement;    but  that,  de  Rut7en  y.  Farr,  4  A.  &  E.  63.] 


CHAP.  Tin.]      OF   DECLABATIONS   AGAINST   INTEKEST.  187 

the  agent  or  incumbent.^  Where  the  entrj-,  by  an  agent,  charges 
himself  in  the  first  instance,  that  fact  has  been  deemed  sufficient 
proof  of  his  agency ;  ^  but  where  it  was  made  by  one  styling  him- 
self clerk  to  a  steward,  that  alone  was  considered  not  sufficient 
to  prove  the  receipt,  by  either  of  them,  of  the  money  therein 
mentioned.^  Yet,  where  ancient  books  contain  strong  internal 
evidence  of  their  actually  being  receivers'  or  agents'  books,  they 
may,  on  that  ground  alone,  be  submitted  to  the  jury.*  Upon  the 
general  question,  how  far  mere  antiquity  in  the  entry  will  avail 
as  preliminary  proof  of  the  character  of  the  declarant  or  party 
making  the  entry,  and  how  far  the  circumstances  which  are 
necessary  to  make  a  document  evidence  must  be  proved  aliunde^ 
and  cannot  be  gathered  from  the  document  itself,  the  law  does 
not  seem  perfectly  settled.^  But  where  the  transaction  is  ancient, 
and  the  document  charging  the  party  with  the  receipt  of  money 
is  apparently  genuine  and  fair,  and  comes  from  the  proper  reposi- 
tory, it  seems  admissible,  upon  the  general  principles  already  dis- 
cussed in  treating  of  this  exception.^ 

§  155.  Books  of  deceased  rector.  There  is  another  class  of 
entries  admissible  in  evidence  which  sometimes  has  been  regarded 
as  anomalous,  and  at  others  has  been  deemed  to  fall  within  the 
principle  of  the  present  exception  to  the  general  rule ;  namely, 
the  private  books  of  a  deceased  rector  or  vicar,  or  of  an  ecclesias- 
tical corporation  aggregate,  containing  entries  of  the  receipt  of 
ecclesiastical  dues,  when  admitted  in  favor  of  their  successors,  or 

*  Short  V.  Lee,  2  Jac.  &  TV.  464,  468.       the   entries  was  more  than  a  hundred 

2  Doe  I'.  Stacy,  6  Car.  &  P.  139.  years  old.    Davies  v.  Morgan,  1  Cr.  & 

3  De  Rutzen  v.  Farr,  4  Ad.  &  El.  53.  Jer.  587,  590,  593,  per  Ld.  Lyndhurst, 
And  see  Doe  v.  Wittcomb,  15  Jur.  778.  C.  B.   In  another  case,  which  was  a  bill  for 

*  Doe  V.  Lord  Geo.  Thynne,  10  East,  tithes,  against  which  a  modus  was  alleged 
206,  210.  in  defence,  a  receipt  of  more  than  fifty 

5  In  one  case,  where  the  point  in  issue  years  old  was  offered,  to  prove  a  money 

was  the  existence  of  a  custom  for  the  ex-  payment  therein  mentioned  to  have  been 

elusion  of  foreign  cordwainers  from  a  cer-  received  for  a  prescription  rent  in  lieu  of 

tain  town,  an  entry  in  tlie   corporation  tithes;  but  it  was  held  inadmissible,  with- 

books,  signed  by  one  acknowledging  him-  out  also  showing  who  the  parties  were, 

self  not  a  freeman,  or  free  of  the  corpora-  and  in  what  character  they  stood.   Manby 

tion,  and  promising  to  pay  a  fine  assessed  v.  Curtis,  1  Price,  225,  per  Thompson, 

on  him  for  breach  of  the  custom;    and  C.   B.,  Graham,  B.,  and   Richards,  B. ; 

another  entry,  signed  by  two  others,  stat-  Wood,  B.,  clissentiente. 

ing    that    they   had    distrained  and   ap-  •>  See  Phil.  &  Am.  on  Evid.  331,  n.  (2) ; 

praised  nine  pairs  of  shoes  from  another  1  Phil.  Evid.  310,  n.  (6),  and  cases  tliere 

person,  for  a  similar  oflTence,  —  were  sev-  cited;  Fenwick  v.  Read,  6  Madd.  8,  per 

erally  held  inadmissible,  without  previ-  Sir  J.  Leach,  Vice-Ch. ;  Bertie  v.  Beau- 

ously  offering  some  evidence  to  show  by  mont,  2  Price,  .307;  Bishop  of  Meath  v. 

whom  the  entries  were  subscribed,  and  Marquis   of   Winchester,  3  Bing.  N.   C. 

in   what   situation    the    several   parties  183,  203  [Doe  v.  Michael,  24  Eng.  Law 

actually  stood;   although  the   latest  of  &  Eq.  180]. 


188  LAW   OF  EVIDENCE.  [PAET  H. 

of  parties  claiming  tlie  same  interest  as  the  maker  of  the  entries. 
Sir  Thomas  Plumer,  in  a  case  before  him,i  said :  "  It  is  admitted, 
that  the  entries  of  a  rector  or  vicar  are  evidence  for  or  against 
his  successors.  It  is  too  late  to  argue  upon  that  rule,  or  upon 
what  gave  rise  to  it ;  whether  it  was  the  cursus  Seaccarii,  the 
protection  of  the  clergy,  or  the  peculiar  nature  of  property  in 
tithes.  It  is  now  the  settled  law  of  the  land.  It  is  not  to  be  pre- 
sumed that  a  person,  having  a  temporary  interest  only,  will  insert 
a  falsehood  in  his  book  from  which  he  can  derive  no  advantage. 
Lord  Kenyon  has  said,  that  the  rule  is  an  exception ;  and  it  is  so : 
for  no  other  proprietor  can  make  evidence  for  those  who  claim 
under  him,  or  for  those  who  claim  in  the  same  right  and  stand  in 
the  same  predicament.  But  it  has  been  the  settled  law,  as  to 
tithes,  as  far  back  as  our  research  can  reach.  We  must,  there- 
fore, set  out  from  this  as  a  datum  ;  and  we  must  not  make  com- 
parisons between  this  and  other  corporations.  No  corporation 
sole,  except  a  rector  or  vicar,  can  make  evidence  for  liis  successor." 
But  the  strong  presumption  that  a  person,  having  a  temporary 
interest  only,  will  not  insert  in  his  books  a  falsehood,  from  wliich 
he  can  derive  no  advantage,  which  evidently  and  justly  had  so 
much  weight  in  the  mind  of  that  learned  judge,  would  seem  to 
bring  these  books  within  the  principle  on  which  entries,  made 
either  in  the  course  of  duty  or  against  interest,  are  admitted. 
And  it  has  been  accordingly  remarked,  by  a  writer  of  the  first 
authority  in  this  branch  of  the  law,  that  after  it  has  been  deter- 
mined that  evidence  may  be  admitted  of  recei^Dts  of  payment, 
entered  in  private  books  by  persons  who  are  neither  obliged  to 
keep  such  books  nor  to  account  to  others  for  the  money  received, 
it  does  not  seem  any  infringement  of  principle  to  admit  these 
books  of  rectors  and  vicars.  For  the  entries  cannot  be  used  by 
those  who  made  them;  and  there  is  no  legal  privity  betwee'i 
them  and  their  successors.  The  strong  leaning,  on  their  part,  in 
favor  of  the  church,  is  nothing  more,  in  legal  consideration,  than 
the  leaning  of  every  declarant  in  favor  of  his  own  interest,  affect- 
ing the  weight  of  the  evidence,  but  not  its  admissibility.  General 
observations  have  occasionally  been  made  respecting  these  books, 
which  may  seem  to  authorize  the  admission  of  any  kind  of  state- 
ment contained  in  them.  But  such  books  are  not  admissible, 
except  where  the  entries  contain  receipts  of  monej''  or  ecclesias- 

1  Short  V.  Lee,  2  Jac.  &  W.  177,  178. 


CHAP.  Vin.]       OF   DECLAHATIONS   AGAESTST   DsTEEEST.  189 

tical  dues,  or  are  otherwise  apparently  prejudicial  to  the  interests 
of  the  makers,  in  the  manner  in  which  entries  are  so  considered 
in  analogous  cases.^  And  proof  will  be  required,  as  in  other 
cases,  that  the  writer  had  authority  to  receive  the  money  stated, 
and  is  actually  dead ;  and  that  the  document  came  out  of  the 
proper  custody .^ 

1  Phil.  &  Am.  on  Evid.  822,  323,  and  «  Gresley  on  Evid.  223,  224;  Carring- 

cases  in  n.  (2)  and  (3);  1  Phil.  Evid.  308,  ton  v.  Jones,  2  Sim.  &  Stu.  135,  140; 
n.  (1),  (2) ;  Ward  v.  Pomfret,  6  Sim.  475.     Perigal  v.  Nicholson,  1  Wight w.  63. 


190 


LAW   OF  EVIDENCE. 


[PABT  n. 


CHAPTER  IX. 


OF   DYING  DECLARATIONS. 

§  156.  Dying  declarations.  A  fourth  exception  to  the  rule,  reject- 
ing hearsay  evidence,  is  allowed  in  the  case  of  dying  declarations. 
The  general  principle  on  which  this  species  of  evidence  is  admit- 
ted, was  stated  by  Lord  Chief  Baron  Eyre  to  be  tliis,  —  that  they 
are  declarations  made  in  extremity,  when  the  party  is  at  the  point 
of  death,  and  when  every  hope  of  this  world  is  gone  ;  when  every 
motive  to  falsehood  is  silenced,  and  the  mind  is  induced,  by  the 
most  powerful  considerations,  to  speak  the  truth.  A  situation  so 
solemn  and  so  awful  is  considered  by  the  law  as  creating  an  obli- 
gation equal  to  that  which  is  imposed  by  a  positive  oath  in  a 
court  of  justice.!  It  was  at  one  time  held,  by  respectable  author- 
ities, that  this  general  principle  warranted  the  admission  of  dying 
declarations  in  all  cases,  civil  and  criminal ;  but  it  is  now  well 
settled  that  they  are  admissible,  as  such,  only  in  cases  of  homi- 
cide, "where  the  death  of  the  deceased  is  the  subject  of  the 
charge,  and  the  circumstances  of  the  death  are  the  subject  of 
the  dying  declarations."  ^    The  reasons  for  thus  restricting  it  may 


I  Rex  V.  "Woodcock,  2  Leach's  Cr.  Cas. 
256,  567 ;  Drummond's  case,  1  Leach's 
Cr.  Cas.  378.  The  rule  of  the  Roman 
civil  law  was  the  same.  "  Morti  proxi- 
mum,  sive  moribundum,  non  prsesumen- 
dum  est  mentiri,  nee  esse  immemorem 
salutis  aeternee  ;  licet  non  prjesumatursem- 
per  dicere  verum.  Mascard.  De  Probat. 
Concl.  1080.  In  the  earliest  reported  case 
on  this  subject,  the  evidence  was  admitted 
without  objection,  and  apparently  on  this 
general  ground.  Rex  v.  Reason  et  al.,  6 
State  Tr.  195,  201.  The  rule  of  the  com- 
mon law,  under  which  tiiis  evidence  is 
admitted,  is  held  not  to  be  repealed  by, 
nor  inconsistent  with,  those  express  pro- 
visions of  constitutional  law,  which  secure 
to  the  person  accused  of  a  crime  the  right 
to  be  confronted  with  the  witnesses  against 
liim.  Anthony  v.  The  State,  1  Meigs, 
205;  Woodsides  v.  The  State,  2  How. 
(Miss.)  665  [Campbell  v.  State.  11  Ge6. 
353;  Brown  I'.  Com..  73  Pa.  St.  321  ;  Com. 
«;.  Carey,  12  Cusli.  (Mass.)  240;  Robbins 
V.  State,  8  Ohio  St.  n.  s.  131J. 


2  Rex  V.  Mead,  2  B.  &  C.  005.  In  this 
case  the  prisoner  had  been  convicted  of 
perjury,  and  moved  for  a  new  trial,  be- 
cause convicted  against  the  weight  of  evi- 
dence ;  after  which  he  shot  the  prosecutor. 
Upon  showing  cause  against  tlie  rule,  the 
counsel  for  the  prosecution  offered  the 
dying  declarations  of  the  prosecutor  rela- 
tive to  the  fact  of  perjury  ;  but  the  evi 
dence  was  adjudged  inadmissible.  The 
same  point  was  ruled  by  Bayley,  J.,  in 
Rex  V.  Hutchinson,  who  was  indicted  for 
administering  poison  to  a  woman  preg- 
nant, but  not  quick  with  child,  in  order 
to  procure  abortion.  2  B.  &  C.  608,  n. 
This  doctrine  was  well  considered  and 
approved  in  Wilson  v.  Boerem,  15  Johns. 
2M6.  In  Rex  v.  Lloyd  et  <il.,  4  C.  &  P. 
23;},  such  declarations  were  rejected  on  a 
trial  for  robbery.  Upon  an  indictment 
for  the  murder  of  A,  by  jjoison,  which 
was  also  taken  by  B,  who  died  in  conse- 
quence, it  was  held  that  the  dying  dec- 
larations of  B  were  admissible,  though  the 
prisoner  was  not  indicted  for  murdering 


CHAP,  rx.] 


OF  DTESTG  DECLARATIONS. 


191 


be,  that  the  credit  is  not  in  all  eases  due  to  the  declarations  of  a 
dying  person  :  for  his  body  may  have  survived  the  powers  of  his 
mind  ;  or  liis  recollection,  if  his  senses  are  not  impaired,  may  not 
be  perfect ;  or,  for  the  sake  of  ease,  and  to  be  rid  of  the  impor- 
tunity and  annoyance  of  those  around  him,  he  may  sa}',  or  seem 
to  say,  whatever  they  may  choose  to  suggest.^  These,  or  the  like 
considerations,  have  been  regarded  as  counterbalancing  the  foice 
of  the  general  principle  above  stated ;  leaving  this  exception  to 
stand  only  upon  the  ground  of  the  public  necessit}^  of  preserving 
the  lives  of  the  community  by  bringing  manslayers  to  justice. 
For  it  often  happens,  that  there  is  no  third  person  present  to  be 
an  eye-witness  to  the  fact ;  and  the  usual  witness  in  other  cases 
of  felony,  namely,  the  party  injured,  is  himself  destroyed.^  But, 
in  thus  restricting  the  evidence  of  dying  declarations  to  cases  of 
trial  for  homicide  of  the  declarant,  it  should  be  observed  that 
this  applies  only  to  declarations  offered  on  the  sole  ground  that 
they  were  made  in  extremis  ;  for  where  they  constitute  part  of  the 
res  gestce,  or  come  within  the  exception  of  declarations  against 
interest,  or  the  like,  they  are  admissible  as  in  other  cases,  irre- 
spective of  the  fact  that  the  declarant  was  under  apprehension 
of  death.^ 


her,  Rex  v.  Baker,  2  M.  &  Rob.  53  [State  v. 
Cameron,  2  Chand.  172 ;  State  v.  Tirrell, 
12  Rich.  ( S.  C. )  321 ;  nor  will  sucli  declara- 
tions be  admitted  in  civil  cases,  Daily  v. 
N.  Y.  &  N.  H.  R.  R.  Co.,  32  Conn.  356 ; 
though  it  has  been  allowed  in  one  or  two 
instances,  Malaun  v.  Ammon,  1  Grant's 
(Pa.)  Cas.  123;  McFarland  v.  Shaw,  2 
Law  Repos.  (N.  C.) ;  but  it  was  from  a 
misapprehension,  says  Judge  Redfield, 
"  of  the  true  grounds  upon  which  the  dec- 
larations are  receivable  as  testimony. 
It  is  not  received  upon  any  other  ground 
than  that  of  necessity,  in  order  to  prevent 
murder  going  unpunished.  What  is  said 
in  the  books  about  the  situation  of  the 
declarant,  he  being  virtually  under  the 
most  solemn  sanction  to  speak  the  truth, 
is  far  from  presenting  the  true  ground  of 
the  admission ;  for,  if  that  were  all  that  is 
requisite  to  render  the  declarations  evi- 
dence, the  apprehension  of  death  should 
liave  the  same  effect,  since  it  would  place 
the  declarant  under  the  same  restraint  as 
if  the  apprehension  were  founded  in  fact. 
But  both  must  concur,  both  the  fact  and 
the  apprehension  of  being  in  extremis. 
And,  although  it  is  not  indispensable 
that  there  should  be  no  other  evidence  of 
the  same  facts,  the  rule  is  no  doubt  based 


upon  the  presumption  that  in  the  major- 
ity of  cases  there  will  be  no  other  equally 
satisfactory  proof  of  the  same  facts.  This 
presumption,  and  the  consequent  proba- 
bility of  the  crime  going  unpunished,  is  un- 
questionably the  chief  ground  of  this  ex- 
ception in  the  law  of  evidence.  And  the 
great  reason  why  it  could  not  be  received 
generally,  as  evidence  in  all  cases  where 
the  facts  involved  should  thereafter  come 
in  question,  seems  to  be  that  it  wants  one 
of  the  most  important  and  indispensable 
elements  of  testimony,  that  of  an  oppor- 
tunity for  cross-examination  by  the  party 
against  whom  it  is  offered."  But  great 
latitude  of  rebuttal  of  such  evidence  will 
be  allowed  the  prisoner,  because  of  its 
anomalous  character.  Com.  v.  Cooper,  5 
Allen  (Mass.),  495;  Ashton's  case,  2 
Lewin,  C.  C.  147.  Exclamations  by  one 
who  is  put  in  mortal  terror  by  an  assault 
are  equally  reliable  with  declarations 
made  in  the  dread  of  impending  deatli. 
Wagner's  case,  61  Maine,  178]. 

^  Jackson  v.  Kntffen,  2  Johns.  31,  35, 
per  Livingston,  J. 

2  1  East,  P.  C.  353. 

3  Supra,  §§  102,  108, 109, 110, 147, 148, 
149.  To  some  of  these  classes  may  be 
referred  the  cases  of  Wright  v.  Littler,  3 


192  LAW   OF  EVIDENCE.  [PABT  H. 

§  157.  Grounds  of  admission.  The  persons  wliose  declarations 
are  thus  admitted  are  considered  as  standing  in  the  same  situa- 
tion as  if  they  were  sworn ;  the  danger  of  impending  death  being 
equivalent  to  the  sanction  of  an  oath.  It  follows,  therefore,  that 
where  the  declarant,  if  living,  would  have  been  incompetent  to 
testify,  by  reason  of  infamy,  or  the  like,  his  dying  declarations 
are  inadmissible. ^  And,  as  an  oath  derives  the  value  of  its  sanc- 
tion from  the  religious  sense  of  the  party's  accountability  to  his 
Maker,  and  the  deep  impression  that  he  is  soon  to  render  to  Him 
the  final  account,  wherever  it  appears  that  the  declarant  was 
incapable  of  this  religious  sense  of  accountability,  whether  from 
infidelity,  imbecility  of  mind,  or  tender  age,  the  declarations  are 
alike  inadmissible. ^  On  the  other  hand,  as  the  testimony  of  an 
accomplice  is  admissible  against  his  fellows,  the  dying  declara- 
tions of  a  particeps  criminis  in  an  act  which  resulted  in  his  own 
death  are  admissible-against  one  indicted  for  the  same  murder.^ 

§  158.  Must  be  made  under  a  sense  of  impending  death.  It  is 
essential  to  the  admissibility  of  these  declarations,  and  is  a  pre- 
liminary fact,  to  be  proved  by  the  party  offering  them  in  evidence, 
that  they  were  made  under  a  sense  of  impending  death;  but  it  is 
not  necessary  that  they  should  be  stated,  at  the  time,  to  be  sp 
made.  It  is  enough,  if  it  satisfactorily  appears,  in  any  mode, 
that  they  were  made  under  that  sanction ;  whether  it  be  directly 
proved  by  the  express  language  of  the  declarant,  or  be  inferred 
from  his  evident  danger,  or  the  opinions  of  the  medical  or  other 
attendants,  stated  to  him,  or  from  his  conduct,  or  other  circum- 
stances of  the  case,  all  of  which  are  resorted  to,  in  order  to  ascer- 
tain the  state  of  the  declarant's  mind.^    The  length  of  time  which 

Burr.  1244;  Avesotiir.  Ld.  Kinnaird,  6  tion   of  law,  contemporaneous;   but  so 

East,  1«8  ;  and  some  Others.     It  was  once  much  as  related  to  the  identity  of  the 

thought  tl»:it  the  dying  declarations  of  tlie  perpetrators    was     rejected.      See    also 

subscribing  witness  to  a  forged  instrument  Regina  i;.  Hewett,  1  Car.  &  Marshm.  534. 

were  admissible  to  impeach  it ;  but  such  [See  State  v.  Shelton,2  Jones  (N.C.),  Law, 

evidence  is  now  rejected,  for  the  reasons  300  ;  State  v.  Peace,  1  Id.  251 ;  Oliver  v. 

already  stated.     Supra,  §  120.     See  Sto-  State,  17  Ala.  687.] 

bart  V.  Drvden,  1  Mees.  &  W.  615,  627.  i  Rex   v.  Drummond,  1   Leach's   Cr. 

In  Regina'y.  Mcgson  et  a!.,  0  C.  &  P.  418,  Cas.  378. 

420i  the  prisoners  were  tried  on  indict-  -  Rex  v.  Pike,  3  C  &  P.  508;    Reg. 

ments,  — one  for  the  murder  of  Ann  Stew-  v.  Perkins,  9  C.  &  P.  .305;  2  Mood.  Cr.  C. 

art,  and  the  other  for  a  rape  upon  her.  135 ;  2  Russell  on  Crimes,  688. 

In  the  former  case,  her  declarations  were  ^  Tinckler's  case,  1  East,  P.    C.   354 

rejected,  because  not  made  in  extremis;  [State  y.  Thomason,  IJones  (N.  C),  Law, 

and  in   the  latter  so  much  of  them  as  274;  and  see /w.s^,  §  460]. 

showed  that  a  dreadful  outrage  had  been  *  Rex  v.  Woodcock,  2  Leach's  Cr.  Cas. 

perpetrated  upon  lier  was  received  m  part  567  ;  John's  case,  1  East,  P.  C.  357,  358; 

of  the  outrage  it.self,  being,  in  coutempla-  Rex  u.  Bonner,  6  C.  &  P.  386;  Rex  o. 


CHAP.  IX.]  OF  DYTN'G  DECLARATIONS.  193 

elapsed  between  the  declaration  and  the  death  of  the  declarant 
furnishes  no  rule  for  the  admission  or  rejection  of  the  evidence  ; 
though,  in  the  absence  of  better  testimony,  it  may  serve  as  one 
of  the  exponents  of  the  deceased's  belief,  that  his  dissolution  was 
or  was  not  impending.  It  is  the  impression  of  almost  immediate 
dissolution,  and  not  the  rapid  succession  of  death,  in  point  of  fact, 
that  renders  the  testimony  admissible.^  Therefore,  vvdiere  it  ap- 
pears that  the  deceased,  at  the  time  of  the  declaration,  had  any 
expectation  or  hope  of  recovery,  however  slight  it  may  have  been, 
and  though  death  actually  ensued  in  an  hour  afterwards,  the  dec- 
laration is  inadmissible .2  On  the  other  hand,  a  belief  that  he  will 
not  recover  is  not  in  itself  sufficient,  unless  there  be  also  the  pros- 
pect of  "  almost  immediate  dissolution."  ^ 

§  159.  Only  as  to  what  deceased  might  have  testified  to.  The 
declarations  of  the  deceased  are  admissible  only  to  those  tilings  to 
which  he  would  have  been  competent  to  testify  if  sworn  in  the  cause. 
They  must,  therefore,  in  general,  speak  to  facts  only,  and  not  to 
mere  matters  of  opinion  ;  and  must  be  confined  to  what  is  rele- 
vant to  the  issue.  But  the  right  to  offer  them  in  evidence  is  not 
restricted  to  the  side  of  the  prosecutor :  they  are  equally  admissi- 
ble in  favor  of  the  party  charged  with  the  death.*  It  is  not  neces- 
sary, however,  that  the  examination  of  the  deceased  should  be 
conducted  after  the  manner  of  interrogating  a  witness  in  the 

Van  Butchell,  Id.  631 ;  Eex  v.  Mosley,  1  [Oliver  v.  State,  17  Ala.  587 ;  Johnson  v. 

Moody's  Or.  Gas.  97  ;  Rex  v.  Spilsbury,  7  State,  Id.  618]. 

C.  &  P.  187,  per  Coleridge,  J. ;  Reg.  v.  2  go  ruled  in  Welborn's  case,  1  East, 

Perkins,  2   Mood.   Cr.  Cas.  135 ;    Mont-  P.  C.  858,  359  ;  Rex  v.  Ciiristie,  2  Russ. 

gomery  v.  Tlie  State,  11  Oliio,  424 ;  Dunn  on  Crimes,  685  ;  Rex  v.  Hayward,  6  C.  & 

t>.  The  State,  2  Pike,  229;  Commonwealth  P.  157,  160;  Rex  i\  Croclcett,  4  C.  &  P. 

V.  M'Pike,  8  Cush.  181 ;  Reg.  v.  Mooney,  544 ;    Rex    v.    Fagent,    7    C.    &   P.   238 

5  Cox,  C.  C.  318.  [Com.  v.  Roberts,  108  Mass.  296]. 

'  In  Woodcock's  case,  2  Leach's  Cr.  ^  Such  was  the  language  of  Hulloek, 

Cas.   563,   the   declarations   were    made  B.,  in  Rex  v.  Van  Butchell,  3  C.  &  P.  629, 

forty-eiglit  hours  before  death ;  in  Tinck-  631.    See  ace.  Woodcock's  case,  2  Leach's 

ler's  case,  1  East,  P.  C.  3-54,  some  of  them  Cr.  Cas.  567,  per  Ld.  C.  B.  Eyre  ;  Rex  v. 

were  made  ten  days  before  death  ;  and  in  Bonner,  6  C.  &  P.  386 ;  Commonwealth  v. 

Rex  V.  Mosley,  1  Mood.  Cr.  Cas.  97,  they  King,   2   Virg.  Cas.  78  ;    Commonwealth 

were  made  eleven  days  before  death  ;  and  v.   Gibson,    Id.    Ill;  Commonwealth    i'. 

were  all  received.    'In  this  last  instance,  Vass,  3  Leigh,  786;  The  State  v.  Poll, 

it  appeared  that  the  surgeon  did  not  think  1  Hawks,  442  ;  Regina  v.  Perkins,  9   C. 

the  case  hopeless,  and  told  the  patient  so;  &  P.  395;  s.   c.  2   Mood.  Cr.   Cas.  135; 

bnt  that  the  patient  thought  otherwise.  Rex  v.  Ashton,  2  Lewin's  Cr.  Cas.  147. 

Si!e  also  Regina  v.  Howell,  1  Denis.  Cr.  [A  declaration  made  when  the  declarant 

Cas.  1  [contra,  People  i-.  Robinson,  2  Par-  hoped  to  recover,  but  read  at  his  request 

ker,  Cr.  R.  235;  People  v.  Knickerbocker,  and  assented  to  by  him  after  he  had  lost 

1  Id.  302].     In  Rex  v.  Bonner,  6  C.  &  P.  all  hope  of  recovery,  is  admissible.     Reg. 

386,  they  were  made  three  days  before  v.  Steele,  12  Cox,  C.  C.  168.] 
death.     And  see   Smith  v.  The  State,  9  *  Rex   v.    Scaife,  1  Mood.  &  Ro.  551 ; 

Humph.  9 ;  Logan  i-.  The  State,  Id.  24  s.  c.  2  Lewin's  Cr.  Cas.  150.  ' 

vol...  I.  13 


194  LAW   OF  EVIDENCE.  [PART  H. 

cause  ;  thougli  any  departure  from  this  mode  may  affect  the 
validity  and  credibility  of  the  declarations.  Therefore,  it  is  no 
objection  to  their  admissibility  that  they  were  made  in  answer  to 
leading  questions,  or  obtained  by  pressing  and  earnest  solicita- 
tion.i  But  whatever  the  statement  may  be,  it  must  be  complete 
in  itself ;  for,  if  the  declarations  appear  to  have  been  intended  by 
the  dying  man  to  be  connected  with  and  qualified  by  other  state- 
ments, which  he  is  prevented  by  any  cause  from  making,  they  will 
not  be  received.^ 

§  160.  AdmissibUity  question  for  the  judge.  The  circumstances 
under  which  the  declarations  were  made  are  to  be  sliown  to  the 
judge ;  it  being  his  province,  and  not  that  of  the  jury,  to  deter- 
mine whether  they  are  admissible.  In  Woodcock's  case,  the  whole 
subject  seems  to  have  been  left  to  the  jury,  under  the  direction 
of  the  court,  as  a  mixed  question  of  law  and  fact ;  but  subse- 
quently it  has  always  been  held  a  question  exclusively  for  the 
consideration  of  the  court,  being  placed  on  the  same  ground  with 
the  preliminary  proof  of  documents,  and  of  the  competency  of 
witnesses,  which  is  always  addressed  to  the  court.^  But,  after  the 
evidence  is  admitted,  its  credibility  is  entirely  witliin  the  province 
of  the  jury,  who,  of  course,  are  at  liberty  to  weigh  all  the  circum- 
stances under  which  the  declarations  were  made,  including  those 
already  proved  to  the  judge,  and  to  give  the  testimony  only  such 
credit  as,  upon  the  whole,  they  may  think  it  deserves.* 

1  Rex  V.  Fagent,  7  C.  &  P.  2?,8  ;  Com-  1  East,  P.  C.  360 ;  John's  case,  Id.  358 ; 

monwealth  v.  Vass,  3  Leigh,  786 ;  Rex  Rex  v.  Van  ButchcU,  8  C.  &  P.  629  ;  Rex 

V.  Reason  el  al.,  1  Stra.  499 ;  Rex  v.  Wood-  v.  Bonner,  6  C  &  P.  380  ;  Rex  v.  Spils- 

cock,  2  Leach's  Cr.   Cas.  563  [Oliver  v.  bury,  7  C.  &  P.   187,  190;  The  State  v. 

State,  17  Aha.  587].  Poll,  1  Hawks,  444;  Commonwealth   v. 

'■*  3  Leigh,  787.  [A  declaration  com-  Murray,  2  Ashm.  41 ;  Commonwealth 
petent  when  made  will  not  be  rejected  v.  Williams,  Id.  69  ;  Hill's  case,  2  Gratt. 
because  of  a  revival  of  hope  in  the  594 ;  McDaniel  v.  The  State,  8  Sm.  &  M. 
dying  person.  State  v.  Tilghman,  11  401.  Where  the  dying  deponent  declared 
Ired.  (N.  C)  L.  513.  By  "complete  in  tliat  the  statement  was  "  as  nigli  right  as 
itself  "  is  meant  that  the  declarant's  state-  he  couM  recollect,"  it  was  held  adini.ssi- 
ment  of  any  given  fact  shall  be  all  he  ble.  The  State  v.  Ferguson,  2  Hill 
intended  to  say  as  to  that  fact.  State  y.  (S.  C),  619  (State  v.  Howard,  32  Vt. 
Patterson,  45  Vt.  308.  Wliere  the  de-  3801.  And  the  majority  of  the  court  held 
ceased  being  asked  "  who  shot  him,"  re-  in  State  r.  Cornish,  5  Harr.  (Del.)  532, 
plied  "  the  prisoner,"  the  declaration  is  that  if  the  State  made  out  a  case  of  ad- 
complete,  and  cannot  be  rejected  because,  missibility,  the  declarations  would  be  re- 
from  weakness  and  exhaustion,  lie  was  ceivod,  and  the  court  could  not  hear 
unable  to  answer  another  question  pro-  evidence  of  the  defence  tiiat  the  declara- 

Sounded  to  liim  immediately  afterwards,  tions  were  not  made  under  a  sense  of  ira- 

IcLean  v.  State,  16  Ala.  672.]  pending  death]. 

8  Said,  per  Ld.  Ellenborough,  in  Rex  *  2  Stark.   Evid.  263 ;  Phil.  &  Am.  on 

V.    Hucks,    1    Stark.    521,   523,   to   have  Evid.  304 ;  Ross  i-.  Gould,  6  Grcenl.  204 ; 

been  so  resolved  by  all  the  judges,  in  a  Vass's  case,  3  Leigh,  794.     See  also  tlie 

case  proposed  to  them.     VVelborn's  case,  remarks  of  Mr.  Evans,  2  Poth.  on  Oblig. 


CHAP.  IX.]  OF  DYING  DECLARATIONS.  195 

§  ICl.  Declarations  in  writing.  If  the  statement  of  the  deceased 
was  committed  to  writing  and  signed  hy  Jiim,  at  the  time  it  was 
made,  it  has  been  held  essential  that  the  writing  should  be  pro- 
duced, if  existing ;  and  that  neither  a  copy,  nor  parol  evidence 
of  the  declarations,  could  be  admitted  to  supply  the  omission. ^ 
But  where  the  declarations  had  been  repeated  at  different  times, 
at  one  of  which  they  were  made  under  oath,  and  informally  re- 
duced to  writing  by  a  witness,  and  at  the  others  they  were  not, 
it  was  held  that  the  latter  might  be  proved  by  parol,  if  the  other 
could  not  be  produced.^  If  the  deposition  of  the  deceased  has 
been  taken  under  any  of  the  statutes  on  that  subject,  and  is  inad- 
missible, as  such,  for  want  of  compliance  with  some  of  thfe  legal 
formalities,  it  seems  it  may  still  be  treated  as  a  dying  declaration, 
if  made  in  extremis.^ 

§  161  a.  Substance  only  required.  It  has  been  held  that  the  sub- 
stance of  the  declarations  may  be  given  in  evidence,  if  the  witness 
is  not  able  to  state  the  precise  language  used.*  And  we  have 
already  seen  that  it  is  no  objection  to  their  admissibility,  that  they 
were  obtained  in  answer  to  questions  asked  by  the  by-standers, 
nor  that  the  questions  themselves  were  leading  questions  ;  and 
that,  if  it  appear  that  the  declarations  were  intended  by  the  dying 
person  to  be  connected  with  and  qualified  by  other  statements, 
material  to  the  completeness  of  the  narrative,  and  that  this  was 
prevented  by  interruption  or  death,  so  that  the  narrative  was  left 
incomplete  and  partial,  the  evidence  is  inadmissible.^ 

§  161  h.  Declarations  by  signs.  The  testimony  here  spoken  of 
may  be  given  as  well  bg  signs  as  by  words.     Thus,  where  one, 

256  (294),  App.  No.  IG,  who  thinks  that  Chand.  172;  People  v.  Glenn,  10  Cal.  82  ; 

the  jury  should  be  directed,  previous  to  State  v.  Tuesday,  11  Iowa,  350;  Collier 

considering  the  effect  of  the  evidence,  to  v.    State,   20  Ark.   36 ;  so,  although  not 

determine :    1st,  Whether   the    deceased  signed,  perhaps.    State   v.  Patterson,  45 

was  really  in  such  circumstances,  or  used  Vt.  308.      But  Taylor,  Evidence,  §  651, 

such  expressions,  from  which  the  appre-  expresses  a  doubt  as  to  the  soundness  of 

hension   in   question   was   inferred;    2d,  this  rule.     See  also  ante,  §  90]. 
Whether  the    inference    deduced    from  ^  j^gx  v.  Reason  et  al.,  1  Sir.  499,  500. 

such  circumstances  or  expressions  is  cor-  ^  jjex  v.  Woodcock,  2  Leach,  Cr.  Cas. 

rect;    3d,     Whether    the    deceased    did  663;  Rex  j;.  Callaghan,  McNally's  Evid. 

make  the  declarations  alleged  against  the  385. 

accused  ;    and  4th,    Whether  those  dec-  *  Montgomery  v.  The  State,  11  Ohio, 

iarations  are  to  be  admitted,  as  sincere  424 ;  Ward  v.  The   State,  8  Blackf.  101. 

and  accurate.     Trant's  case,   McNally's  And  see  infra,  §  165.     [The  substance  of 

Evid.  385.  the  declarations  is  suflBcient,  and  it  may 

^  Rex  V.  Gay,  7  C  &  P.  230  ;  Trowter's  be  given,  if  need  be,  by  an   interpreter, 

case,  P.  8  Geo.  I.  B.  R.  12  Vin.  Abr.  118,  Starkey  v.  People,  17  111.  17.] 
119;  Leach  V.  Simpson  e<  a/.,  1  Law  &  Eq.  *  Vass's   case,   3    Leigh,   786;    supra, 

68;  5  M.  &  W.  309 ;  7  Dowl.  P.  C.  13 ;  §  159. 
B.   c.  3  Jur.  654   [State  v.  Cameron,   2 


196 


LAW  OF  EVIDENCE. 


[pAUT  n. 


being  at  the  point  of  death  and  conscious  of  her  situation,  but 
unable  to  articulate  by  reason  of  the  wounds  she  had  received, 
was  asked  to  say  whether  the  prisoner  was  the  person  who  had 
inflicted  the  wounds,  and,  if  so,  to  squeeze  the  hand  of  the  inter- 
rogator, and  she  thereupon  squeezed  his  hand,  it  was  held  that 
this  evidence  was  admissible  and  proper  for  the  consideration  of 
the  jury.i 

§  162.  Appreciation  of  the  weight  of  such  declarations  as  evidence. 
Though  these  declarations,  when  deliberately  made,  under  a  sol- 
emn and  religious  sense  of  impending  dissolution,  and  concerning 
circumstances,  in  respect  of  which  the  deceased  was  not  likely  to 
have  been  mistaken,  are  entitled  to  gi-eat  weight,  if  precisely  iden- 
tified, yet  it  is  always  to  be  recollected  that  the  accused  has  not 
the  po'wer  of  cross-examination^  —  a  power  quite  as  essential  to  the 
eliciting  of  all  the  truth,  as  the  obligation  of  an  oath  can  be ;  and 
that  where  the  witness  has  not  a  deep  and  strong  sense  of  account- 
ability to  Ms  Maker,  and  an  enlightened  conscience,  the  passion 
of  anger  and  feelings  of  revenge  may,  as  they  have  not  unfre- 
quently  been  found  to  do,  affect  the  truth  and  accuracy  of  his 
statements,  especially  as  the  salutary  and  restraining  fear  of  pun- 
ishment for  perjury  is  in  such  cases  withdrawn.  And  it  is  further 
to  be  considered,  that  the  particulars  of  the  violence  to  which 
the  deceased  has  spoken  were  in  general  likely  to  have  occurred 


1  Commonwealth  v.  Casev,  6  Monthly 
Law  Kep.  p.  203  [11  Cush.  417,  421. 
The  entire  ophiion  of  the  court,  by  Shaw, 
C.  J.,  is  as  follows  :  "  We  appreciate  the 
importance  of  the  question  offered  for  our 
decision.  Where  a  person  has  been  in- 
jured in  sncli  a  way,  that  his  testimony 
cannot  be  had  in  the  customary  way,  the 
usual  and  ordinary  rules  of  evidence  must, 
from  tiie  necessity  of  the  case,  be  de- 
parted from.  The  point  first  to  be  estab- 
lished is,  that  the  person  whose  dying 
declarations  are  souglU  to  be  admitted 
was  conscious  tiiat  he  was  near  his  end  at 
the  time  of  making  them  ;  for  this  is  sup- 
posed to  create  a  solemnity  equivalent  to 
an  oath.  If  this  fact  be  satisfactorily  es- 
tablislied,  and  if  the  declarations  are  made 
freely  and  voluntarily,  ami  without  coer- 
cion, tliey  may  be  admitted  as  competent 
evidence  to  go  to  the  jury.  But,  after 
they  are  admitted,  the  facts  of  the  declara- 
tions and  their  credibility  are  still  for  tiie 
judgment  of  the  jury. 

"  In  regard  to  the  matter  before  the 
court,  and  the  a<lmissibility  of  the  signs 
bj  Mrs.  Taylor,  in  reply  to  the  questions 


put  to  her,  it  is  to  be  observed  that  all 
words  are  signs ;  some  are  made  by  the 
mouth,  and  others  by  the  hands.  There 
was  a  civil  case  tried  in  Berkshire  county, 
where  a  suit  was  brought  against  a  rail- 
road company,  and  the  question  was, 
whether  a  female  who  was  run  over  sur- 
vived the  accident  for  any  lengtli  of  time. 
She  was  unable  to  speak,  but  was  asked, 
if  she  had  consciousness,  to  press  their 
hands,  and  the  testimony  was  admitted. 
If  the  injured  party  had  but  the  action  of 
a  single  finger,  and  with  that  finger 
])ointed  to  the  words  "  yes  "  and  "  no,"  in 
answer  to  questions,  in  such  a  manner  as 
to  render  it  probable  that  she  understood, 
and  was  at  the  same  time  conscious  that 
she  could  not  recover,  then  it  is  admissi- 
ble evidence.  It  is,  thereforL',  the  opinion 
of  the  court,  that  the  circumstances  under 
which  the  responses  were  given  by  Mrs. 
Taylor  to  the  questions  which  were  put 
her  warrant  that  the  evidence  shall  be 
admitted,  but  it  is  for  the  jury  to  judge 
of  its  credibility,  and  of  the  effect  which 
shall  be  given  to  it  "J. 


CHAP.  IX.] 


OF   DYING  DECLARATIONS. 


197 


under  circumstances  of  confusion  and  surprise,  calculated  to  pre- 
vent their  being  accurately  observed,  and  leading  both  to  mistakes 
as  to  the  identity  of  persons,  and  to  the  omission  of  facts  essen- 
tially important  to  the  completeness  and  truth  of  the  narrative.^ 


1  Pliil.  &  Am.  on  Evid.  305,  806 ;  1 
Phil.  Evid.  292 ;  2  Johns.  35,  86,  per  Liv- 
ingston, J.  See  also  Mr.  Evans's  observa- 
tions on  the  great  caution  to  be  observed 
in  the  use  of  tliis  kind  of  evidence,  in  2 
Potli.  Obi.  255  (203);  2  Stark.  Evid.  263. 
See  also  Hex  i-.  Ashton,2  Lewin's  Or.  Gas. 
147,  per  AUlerson,  B.  [Such  testimony- 
may  be  impeached  by  showing  that  the 
declarant  did  not  believe  in  a  future  state 
of  rewards  and  punishments.     Goodall  v. 


State,  1  Oreg.  333.  The  dying  declara- 
tions of  a  third  person  made  under  such 
circumstances  as  to  make  them  a  part  of 
the  res  gestae,  were  admitted  in  Hex  v. 
Baker,  2  M.  &  R.  53.  See  also  State  v. 
Terrell,  12  Rich.  (S.  C.)  321.  But  they 
must  be  strictly  part  of  the  res  gesfce  to 
render  them  admissible.  Brown  v.  Com- 
monwealth, 73  Penn.  St.  321.  See  also 
Wagner's  case,  61  Maine,  178.] 


198  LAW   OF   EVIDENCE,  [PAET  H. 


CHAPTER  X. 

OP   THE    TESTIMONY    OF    WITNESSES    SUBSEQUENTLY   DEAD, 
ABSENT,   OR   DISQUALIFIED. 

§  163.  Testimony  of  deceased  witnesses.  Ill  the  fifth  class  of 
exceptions  to  the  rule  rejecting  hearsay  evidence  may  be  included 
the  testimony  of  deceased  witnesses,  given  in  a  former  action,  be- 
tween the  same  parties ;  though  this  might,  perhaps,  with  equal 
propriety,  be  considered  under  the  rule  itself.  This  testimony 
may  have  been  given  either  orally  in  court,  or  in  written  depo- 
sitions taken  out  of  court.  The  latter  will  be  more  particularly 
considered  hereafter,  among  the  instruments  of  evidence.  But 
at  present  we  shall  state  some  principles  applicable  to  the  testi- 
mony, however  given.  The  chief  reasons  for  the  exclusion  of 
hearsay  evidence  are  the  want  of  the  sanction  of  an  oath,  and  of 
any  opportunity  to  cross-examine  the  witness.  But  where  the 
testimony  was  given  under  oath,  in  a  judicial  proceeding,  in  which 
the  adverse  litigant  was  a  party,  and  where  he  had  the  power  to 
cross-examine,  and  was  legally  called  upon  so  to  do,  the  great  and 
ordinary  test  of  truth  being  no  longer  wanting,  the  testimony  so 
given  is  admitted,  after  the  decease  of  the  witness,  in  any  subse- 
quent suit  between  the  same  parties.^  It  is  also  received,  if  the 
witness,  though  not  dead,  is  out  of  the  jurisdiction,  or  cannot  be 
found  after  diligent  search,  or  is  insane,  or  sick,  and  unable  to 
testify,  or  has  been  summoned,  but  appears  to  have  been  kept 
away  by  the  adverse  party .^     But  testimony  thus  offered  is  open 

1  Bull.  N.  P.  239,  242  ;  Mnyor  of  Don-  tingency  except  the  death  of  the  witness, 
caster  v.  Day,  8  Taunt.  262 ;  Glass  v.  there  is  some  discrepancy  amontr  the 
Beach,  6  Vt.  172;  Lightner  v.  Wike,  4  American  authorities.  It  has  been  re- 
S.  &  K.  203.  fused  wliere  the  witness  had  suh.soquently 

2  Bull.  N.  P.  2-39,  243 ;  1  Stark.  Evid.  become  interested,  but  was  living  and 
264;  12  Vin.  Abr.  107,  A.  b.  31 ;  Godb.  within  reach,  Chess  v.  Chess,  17  S.  &  R. 
326;  Rex  y.  Eriswcll,  3  T.  R.  707,  721,  409;  Irwin  v.  Reed,4  Yeates,  512;  where 
per  Ld.  Kenyon  [Long  v.  Davis,  18  Ala.  he  was  not  to  be  found  within  the  juris- 
801;  Covanliovan  v.  Hart,  21  Pcnn.  (9  diction,  but  was  reported  to  have  gone  to 
Harris),  495].  As  to  the  effect  of  interest  an  adjoining  State,  Wilber  v.  Seldcn,  6 
Bubscqucntly  acquired,  see  infra,  §  167.  Cowen,  162;  where,  since  the  former 
Upon  the  question  whether  this  kind  of  trial,  he  had  become  incompetent  by  being 
evidence  is  admissible  in  any  other  con-  convicted  of    an    infamous    crime,   L« 


CHAP.  X.]      OF  WITNESSES   SUBSEQUENTLY  DISQUALEFIED.      199 

to  all  the  objections  which  might  be  taken  if  the  witness  were 
personally  present.^  And  if  the  witness  gave  a  written  deposi- 
tion in  the  caiise,  but  afterwards  testified  orally  in  court,  parol 
evidence  may  be  given  of  what  he  testified  vivd  voce,  notwith- 
standing the  existence  of  the  deposition. ^ 

§  164.  Restrictions.  The  admissibility  of  this  evidence  seems 
to  turn  rather  on  the  right  to  cross-examine  than  upon  the  precise 
nominal  identity  of  all  the  parties.  Therefore,  where  the  witness 
testified  in  a  suit,  in  which  A  and  several  others  were  plaintiffs, 
against  B  alone,  his  testimony  was  held  admissible,  after  his  death, 
in  a  subsequent  suit,  relating  to  the  same  matter,  brought  by  B 
against  A  alone .^     And,  though  the  two  trials  were  not  between 


Baron  v.  Crombie,  14  Mass.  234  ;  where, 
though  present,  he  had  forgotten  the  facts 
to  which  he  had  formerly  testified,  Dray- 
ton V.  Wells,  1  Nott  &  McCord,  409  ;  and 
where  he  has  proved  to  have  left  the  State, 
after  being  summoned  to  attend  at  the 
trial,  Finn's  case,  5  Rand.  701.  In  this 
last  case  it  was  held,  that  this  sort  of  testi- 
mony was  not  admissible  in  any  criminal 
case  whatever.  [See  also  Brogy  v.  Com- 
monwealth, 10  Gratt.  722.]  In  the  cases 
of  Le  Baron  v.  Crombie,  VVilber  v.  Sel- 
den,  and  also  in  Crary  v.  Sprague,  12 
Wend.  41,  it  was  said  that  such  testimony 
was  not  admissible  in  any  case,  except 
where  the  witness  was  shown  to  be  dead : 
but  this  point  was  not  in  either  of  those 
cases  directly  in  judgment;  and  in  some 
of  them  it  does  not  appear  to  have  been 
fully  considered.  [See  also  Weeks  v. 
Lowerre,  8  Barb.  630.]  On  the  other 
hand,  in  Drayton  v.  Wells,  it  was  held  by 
Cheves,  J.,  to  be  admissible  in  four  cases  : 
1st,  where  the  witness  is  dead ;  2d,  in- 
sane ;  3d,  beyond  seas ;  and  4th,  where 
he  has  been  kept  away  by  contrivance  of 
the  other  party.  See  also  Moore  v.  Pear- 
son, 6  Watts  '&  Serg.  51.  In  Magill  v. 
Kauffman,  4  S.  &  R.  317,  and  in  Carpen- 
ter V.  Groff,  5  S.  &  R.  1G2,  it  was  admitted 
on  proof  that  the  witness  had  removed 
from  Pennsylvania  to  Ohio  ;  it  was  also 
admitted,  wliere  the  witness  was  unable 
to  testify,  by  reason  of  sickness,  in  Miller 
V.  Russell,  7  Martin,  n.  s.  2G6;  and  even 
where  he,  being  a  sheriff,  was  absent  on 
official  duty.  Noble  v.  Martin,  7  Martin, 
N.  s.  282.  [If  the  illness  be  apparently 
temporary,  the  better  practice  seems  to 
be  to  postpone  the  trial.  Harrison  v. 
Blades,  3  Campb.  458.  So  if  the  insanity 
is  not  hopeless.  Taylor,  Ev.  §§  444,  445 ; 
State  V.  Carney,  Sup.  Jud.  Ct.  (Maine) 
1846,  9  Law  Reporter,  408.     But  if  it 


appears  that  the  witness  was  not  fully 
examined  at  the  former  trial,  his  testi- 
mony cannot  be  given  in  evidence.  Noble 
V.  McCUntock,  6  Watts  &  Serg.  58.  If 
the  witness  is  gone,  no  one  knows  whither, 
and  his  place  of  abode  cannot  be  ascer- 
tained by  diligent  inquiry,  the  case  can 
hardly  be  distinguished  in  principle  from 
that  of  his  death  ;  and  it  would  seem 
that  his  former  testimony  ought  to  be 
admitted.  If  he  is  merely  out  of  the 
jurisdiction,  but  the  place  is  known,  and 
his  testimony  can  be  taken  under  a  com- 
mission, It  is  a  proper  case  for  the  judge 
to  decide,  in  his  discretion,  and  upon  all 
the  circumstances,  whether  the  purposes 
of  justice  will  be  best  served  by  issuing 
such  commission,  or  by  admitting  the 
proof  of  what  he  formerly  testified.  The 
same  rule  applies  to  the  case  of  an  inter- 
preter of  a  witness.  Shearer  i;.  Harber, 
36  Ind.  536.] 

1  Wright  V.  Tatham,  2  Ad.  &  El.  3,  21. 
Thus,  where  the  witness  at  the  former 
trial  was  called  by  the  defendant,  but  was 
interested  on  the  side  of  tiie  plaintiff,  and 
the  latter,  at  the  second  trial,  offers  to 
prove  his  former  testimony,  the  defendant 
may  object  to  the  competency  of  the  evi- 
dence, on  the  ground  of  interest.  Crary 
V.  Sprague,  12  Wend.  41. 

2  Tod  V.  E.  of  Winchelsea,  3  C.  &  P. 
387 

3  Wright  V.  Tatham,  1  Ad.  &  El.  3. 
But  see  Matthews  v.  Colburn,  1  Strob.  258. 
[So  it  is  admissible  in  a  subsequent  action, 
in  which  the  same  matter  is  in  issue,  be- 
tween persons  who  were  parties  to  the 
former  action,  although  other  persons,  not 
now  before  the  court,  were  also  parties  to 
the  former  action.  Philadelphia,  W.&B. 
R.  R.  Co.  V.  Howard,  13  How.  (U.  S.)  307. 
But  where,  in  a  suit  for  land  against  two 
persons   jointly,  certain  facts  were  ad- 


200 


LAW   or  EVIDENCE. 


[PAET  n. 


the  parties,  yet  if  the  second  trial  is  between  those  who  represent 
the  parties  to  the  first,  by  privity  in  blood,  in  law,  or  in  estate,  the 
evidence  is  admissible.  And  if,  in  a  dispute  respecting  lands, 
any  fact  comes  directly  in  issue,  the  testimony  given  to  that  fact 
is  admissible  to  prove  the  same  point  or  fact  in  another  action 
between  the  same  parties  or  their  privies,  though  the  last  suit  be 
for  other  lands.^  The  principle  on  which,  chiefly,  this  evidence  is 
admitted,  namely,  the  right  of  cross-examination,  requires  that  its 
admission  be  carefully  restricted  to  the  extent  of  that  right ;  and 
that  where  the  witness  incidentally  stated  matter,  as  to  which  the 
party  was  not  permitted  by  the  law  of  trials  to  cross-examine 
him,  his  statement  as  to  that  matter  ought  not  afterwards  to  be 
received  in  evidence  against  such  party.  Where,  therefore,  the 
point  in  issue  in  both  actions  was  not  the  same,  the  issue  in  the 
former  action  having  been  upon  a  common  or  free  fishery,  and,  in 
the  latter,  it  being  upon  a  several  fishery,  evidence  of  what  a  wit- 
ness, since  deceased,  swore  upon  the  former  trial,  was  held  inad- 
missible.^ 

§  165.  Precise  words  not  necessary.  It  was  formerly  held,  that 
the  person  called  to  prove  what  a  deceased  witness  testified  on  a 
former  trial  must  be  required  to  repeat  his  precise  ivords,  and  that 
testimony  merely  to  the  effect  of  them  was  inadmissible.^     But. 


mitted  and  agreed  on  by  all  the  parties, 
in  a  subsequent  suit  for  the  same  land 
between  the  same  defendants,  tliis  ad- 
mission and  agreement,  thougli  in  writing, 
is  not  evidence.  Frye  v.  Gragg,  35  Maine, 
29.1 

1  Outram  v.  Morewood,  3  East,  346, 
354,  355,  per  Ld.  Ellenborough ;  Peake's 
Evid.  (3d  ed.)  p.  37;  Hull.  N.  P.  232; 
Doe  V.  Derby,  1  Ad.  &  El.  783;  Doe 
V.  Foster,  Id.  791,  n.  ;  Lewis  v.  Clerges, 
3  Bac.  Abr.  G14;  Shelton  v.  Barbour, 
2  Wash.  G4  ;  Kusliford  v.  Countess  of 
Pembroke,  Hard.  472;  Jackson  v.  Law- 
son,  15  Johns.  544;  Jackson  v.  Bailey,  2 
Johns.  17 ;  Powell  v.  Waters,  17  Johns. 
176.  See  also  Ei)hraims  v.  Murdoch,  7 
Blackf.  10;  Hnrpcri'.  Burrow,  G  Ired.  30; 
Clealand  v.  Iluev,  18  Ala.  343. 

2  Meivin  v.  Whiting,  7  Pick.  79.  See 
also  Jackson  v.  Winchester,  4  Dall.  20G  ; 
Ephraims  r.  Murdoch,  7  Blackf.  10. 
[Where  tiicre  was  a  preliminary  examina- 
tion before  a  magistrate  of  a  defendant 
charged  witli  a  crime,  and  a  witness,  since 
deceased,  there  testified  for  tlie  govern- 
ment and  was  cross-examined  by  defend- 
ant's counsel,  and  subsequently  an   in- 


dictment was  found,  it  was  held,  on  the 
trial  of  the  indictment,  that  tlie  evidence 
of-  what  tlie  witness  testified  to  at  the 
preliminary  examination  was  admissible. 
United  States  i'.  Macomb,  5  McLean,  28G ; 
Davis  r.  State,  17  Ala.  354 ;  Kendrick  r. 
State,  10  Humpli.  479.  But  see  Oliver 
V.  State,  G  Miss.  14 ;  State  ;•.  McLoud,  1 
Hawks,  (N.  C.)  344.  Such  testimony 
before  a  coroner  is  inadmissible.  State 
r.  Campbell,  1  Ricli.  (S.  C.)  124,  unless 
the  witness  be  away  by  procurement  of 
the  accused.  Williams  v.  State,  19  Geo. 
402.  The  testimony  given  before  arbi- 
trators, by  a  witness  since  deceased,  is 
admissible  in  evidence  in  a  subsequent 
suit  between  the  same  parties  on  the 
same  subject-matter,  iilthougli  the  award 
has  since  l>een  set  aside,  ])rovi(U'd  the 
submission  was  good,  and  the  arbitrators 
had  jurisdiction.  McAdams  i:  Stilwell, 
13  Penn.  St.  90;  Bailey  v.  Woods,  17 
N.  II.  365 ;  contra,  Jessup  v.  Cook,  6 
N.  J.  Law,  434.] 

3  4  T.  K.  290,  said,  per  Ld.  Kenyon,  to 
liave  been  so  "  agreed  on  all  hands,"  upon 
an  offer  to  prove  what  Ld.  Palmerston  liad 
testified.     So  held,  also,  by  Wasliingtou, 


CHAP.  X.J      OF   WITNESSES   SUBSEQUENTLY  DISQUALIFIED.      201 

this  strictness  is  not  now  insisted  upon,  in  proof  of  the  crime  of 
perjury ;  ^  and  it  has  been  well  remarked,  that  to  insist  upon  it 


J.,  in  United  States  i'.  Wood,  3  Wash. 
440;  1  Phil.  Evid.  200  [215],  3d  ed. ; 
Foster  v.  Shaw,  7  Serg.  &  R.  163,  per 
Duncan,  J. ;  Wilber  v.  Seldon,  6  Co  wen, 
165;  Epiiraims  v.  Murdoch,  7  Blackf.  10. 
The  same  rule  is  applied  to  the  proof  of 
dying  declarations.  Montgomery  v.  Uhio, 
11  Ohio,  421.  In  New  Jersey  it  has 
been  held,  that  if  a  witness  testifies  that 
lie  has  a  distinct  recollection.  Independent 
of  his  notes,  of  the  fact  that  the  deceased 
was  sworn  as  a  witness  at  the  former  trial, 
of  what  he  was  produced  to  prove,  and  of 
the  substance  of  what  he  then  stated,  he 
may  rely  on  his  notes  for  the  language,  if 
he  believes  them  to  be  correct.  Sloan  v. 
Somers,  1  Spencer,  66.  In  Massachusetts, 
in  The  Commonwealth  v.  Kichards,  18 
Pick.  434,  the  witnesses  did  not  state 
the  precise  words  used  by  the  deceased 
witness,  but  only  the  substance  of  them, 
from  recollection,  aided  by  notes  taken  at 
the  time  ;  and  one  of  the  witnesses  testi- 
fied tliat  lie  was  confident  that  he  stated 
substantives  and  verbs  correctly,  but  was 
not  certain  as  to  the  prepositions  and  con- 
junctions. Yet  the  court  held  this  insuf- 
ficient, and  required  that  the  testimony 
of  the  deceased  witness  be  stated  in  his 
own  language,  ipsissimis  verbis.  The  point 
was  afterwards  raised  in  Warren  v.  Nich- 
ols, 6  Met.  261 ;  wnere  the  witness  stated 
that  he  could  give  the  substance  of  the 
testimony  of  the  deceased  witness,  but 
not  the  precise  language  ;  and  the  court 
held  it  insuflicient ;  Hubbard,  J.,  dissenti- 
ente.  The  rule,  however,  as  laid  down  by 
the  court  in  the  latter  case,  seems  to 
recognize  a  distinction  between  giving  the 
substance  of  the  deceased  witness's  testi- 
mony, and  the  substance  of  the  language  ; 
and  to  require  only  that  his  language  be 
stated  substantially,  and  in  all  material 
particulars,  and  not  ipsissimis  verbis.  The 
learned  chief  justice  stated  the  doctrine 
as  follows :  "  The  rule  upon  which  evi- 
dence may  be  given  of  what  a  deceased 
witness  testified  on  a  former  trial  between 
the  same  parties,  in  a  case  where  the 
same  question  was  in  issue,  seems  now 
well  established  in  this  commonwealth  by 
authorities.  It  was  fully  considered  in 
the  case  of  Commonwealth  v.  Richards, 
18  Pick.  434.  The  principle  on  which 
this  rule  rests  was  accurately  stated,  the 
cases  in  support  of  it  were  referred  to, 
and  with  the  decision  of  which  we  see  no 


cause  to  be  dissatisfied.  The  general  rule 
is, that  one  person  cannot  be  heard  to 
testify  as  to  what  another  person  has  de- 
clared, in  relation  to  a  fact  within  his 
knowledge,  and  bearing  ujion  the  issue. 
It  is  the  familiar  rule  which  excludes 
hearsay.  The  reasons  are  obvious,  and 
thej'^  are  two:  first,  because  the  aver- 
ment of  fact  does  not  come  to  the  jury 
sanctioned  by  the  oath  of  tiie  party  on 
whose  knowledge  it  is  supposed  to  rest ; 
and  secondly,  because  the  party  upon 
whose  interests  it  is  brought  to  bear  has 
no  opportunit)'  to  cross-examine  him  on 
whose  supposed  knowledge  and  veracity 
the  truth  of  the  fact  depends.  Now  the 
rule,  which  admits  evidence  of  what 
another  said  on  a  former  trial,  must  effec- 
tually exclude  both  of  these  reasons.  It 
must  have  been  testunonij ;  that  is,  the 
affirmation  of  some  matter  of  fact  under 
oath  ;  it  must  have  been  in  a  suit  between 
the  same  parties  in  interest,  so  as  to  make 
it  sure  that  the  party,  against  whom  it  is 
now  offered,  had  an  opportunity  to  cross- 
examine  ;  and  it  must  have  been  upon  the 
same  subject-matter,  to  show  that  his 
attention  was  drawn  to  points  now  deemed 
important.  It  must  be  the  same  testi- 
mony which  the  former  witness  gave,  be- 
cause it  comes  to  the  jury  under  the 
sanction  of  his  oath,  and  the  jury  are  to 
weigh  the  testimony  and  judge  of  it,  as 
he  gave  it.  Tlie  witness,  therefore,  must 
be  able  to  state  the  language  in  which  the 
testimony  was  given,  substantia!/ y  and  in 
all  material  particulars ,  because  that  is  the 
vehicle  by  which  the  testimony  of  the 
witness  is  transmitted,  of  wliich  the  jury 
are  to  judge.  If  it  were  otherwise,  the 
statement  of  the  witness,  which  is  otTered, 
would  not  be  of  the  testimony  of  the 
former  witness  ;  that  is,  of  the  ideas  con- 
veyed by  the  former  witness,  in  the  lan- 
guage in  which  he  embodied  them ;  but  it 
would  be  a  statement  of  the  present  wit- 
ness's understanding  and  comprehension 
of  those  ideas,  expressed  in  language  of 
his  own.  Those  ideas  may  liave  been  mis- 
understood, modified,  perverted,  or  col- 
ored, by  passing  through  the  mind  of  tiie 
witness,  by  his  knowledge  or  ignorance  of 
the  subject,  or  the  language  in  which  tiie 
testimony  was  given,  or  by  his  own  preju- 
dices, predilections,  or  habits  of  thought 
or  reasoning.  To  illustrate  this  distinc- 
tion, as  we  understand  it  to  be  fixed  by 


1  Rex  V.  Rowley,  1  Mood.  Cr.  Cas.  111. 


202 


LAW  OF  EVIDENCE. 


[part  n. 


in  other  cases  goes  in  effect  to  exclude  this  sort  of  evidence  alto- 
gether, or  to  admit  it  only  where,  in  most  cases,  the  particularity 
and  minuteness  of  the  witness's  narrative,  and  the  exactness  with 
which  he  undertakes  to  repeat  every  word  of  the  deceased's  testi- 
mony, ought  to  excite  just  doubts  of  his  own  honesty,  and  of  the 
truth  of  his  evidence.  It  seems,  therefore,  to  be  generally  con- 
sidered sufficient,  if  the  witness  is  able  to  state  the  substance  of 
what  was  sworn  on  the  former  trial.^  But  he  must  state,  in  sub- 
stance, the  whole  of  what  was  said  on  the  particular  subject  which 
he  is  called  to  prove.    If  he  can  state  only  what  was  said  on  that 


the  cases :  if  a  witness,  remarkable  for 
his  knowledge  of  law,  and  his  intelligence 
on  all  other  subjects,  of  great  quickness 
of  apprehension  and  power  of  discrimina- 
tion, should  declare  that  lie  could  give  the 
substance  and  effect  of  a  former  witness's 
testimony,  but  could  not  recollect  his  lan- 
guage, we  suppose  he  would  be  excluded 
by  the  rule.  But  if  one  of  those  remark- 
able men  sliould  happen  to  have  been 
present,  of  great  stolidity  of  mind  upon 
most  subjects,  but  of  extraordinary  te- 
nacity of  memory  for  language,  and  who 
would  say  that  he  recollected  and  could 
repeat  all  the  words  uttered  by  the  wit- 
ness ;  although  it  should  be  very  manifest 
that  he  himself  did  not  understand  them, 
yet  his  testimony  would  be  admissible. 
The  witness  called  to  prove  former  testi- 
mony must  be  able  to  satisfy  one  other 
condition;  namely,  that  he  is  able  to  state 
all  that  the  witness  testified  on  the  former 
trial,  as  well  upon  the  direct  as  the  cross 
examination.  The  reason  is  obvious.  One 
part  of  his  statement  may  be  qualified, 
softened,  or  colored  by  another.  And  it 
would  be  of  no  avail  to  the  party  against 
whom  the  witness  is  called  to  state  the 
testimony  of  tlie  former  witness,  that  he 
has  had  the  right  and  opportunity  to  cross- 
examine  tliat  former  witness,  with  a  view 
of  diminishing  the  weight  or  impairing 
the  force  of  that  testimony  against  him, 
if  the  whole  and  entire  result  of  that  cross- 
examination  does  not  accompany  the 
testimony.  It  may,  porliajjs,  be  said,  that, 
with  these  restrictions,  the  rule  is  of  little 
value.  It  is  no  douht  true,  that,  in  most 
cases  of  complicated  and  extended  testi- 
mony, the  lo.ss  of  evidence,  liy  the  decease 
of  a  witness,  caimot  be  avoided.  But  the 
^ame  result  follows,  in  most  cases,  from 
the  decease  of  a  witness  whose  testimony 
has  not  been  preserved  in  some  of  the 
modes  provided  by  law.  But  there  are 
some  cases  in  which  the  rule  can  be  use- 
fully applied,  as  in  case  of  testimony  era- 


braced  in  a  few  words,  —  such  as  proof  of 
demand  or  notice,  on  notes  or  bills,  — 
cases  in  which  large  amounts  are  often 
involved.  If  it  can  be  used  in  a  few 
cases, consistently  with  the  true  and  sound 
principles  of  the  law  of  evidence,  tliere  is 
no  reason  for  rejecting  it  altogether.  At 
the  same  time,  care  should  be  taken  so  to 
apply  and  restrain  it,  that  it  may  not, 
under  a  plea  of  necessity,  and  in  order  to 
avoid  hard  cases,  be  so  used  as  to  violate 
those  principles.  It  is  to  be  recollected, 
that  it  is  an  exception  to  the  general  rule 
of  evidence,  supposed  to  be  extremely 
important  and  necessary;  and  unless  a 
case  is  brought  fully  within  the  reasons  of 
sucli  exception,  tlie  general  rule  must  pre- 
vail." See  6  Met.  264-2o6.  See  also 
Marsh  v.  Jones,  6  Washb.  378. 

1  See  Cornell  v.  Green,  10  Serg.  &  R. 
14,  10,  where  this  point  is  briefly  but 
jJOwerfuUy  discussed  by  Mr.  Justice  Gib- 
son. See  also  Miles  v.  O'Hara,  4  Binn. 
108 ;  Caton  ?;.  Lenox,  5  Randolph,  ol,  36  ; 
Rex  V.  Rowley,  1  Mood.  Cr.  C.  Ill; 
Chess  V.  Chess,  17  Serg.  &  R.  409,  411, 
412;  Jackson  i'.  Bailey,  2  Johns.  17;  2 
Russ.  on  Crimes,  038  [683],  (3d  Am.  ed.) ; 
Sloan  V.  Somers,  1  Spencer,  66 ;  Gar- 
rett V.  Johnson,  11  G.  &  J.  28;  Canney's 
case,  9  Law  Rep.  408;  The  State  v. 
Hooker,  2  Washb.  0.58;  Gildersleeve  v. 
Caraway,  10  Ala.  260 ;  Gould  v.  Craw- 
ford, 2  Barr,  8!» ;  Wagers  v.  Dickey,  17 
Ohio,  439  [United  States  v.  Macomb, 
5  McLean,  280;  Emery  v.  Fowler,  39 
Maine,  320;  Young  v.  Dearborn.  2  Fos- 
ter, 372 ;  Williams  v.  Willard,  23  Vt.  309; 
Van  Buren  v.  Cockburn,  14  Barb.  118; 
Jones  V.  Wood,  16  Penn.  St.  25; 
Biggins  V.  Brown,  12  Geo.  271 ;  Walker 
I'.  Walker,  14  Id.  242  ;  Davis  v.  State, 
17  Ala.  354  ;  Clealand  v.  Huey,  18  Id. 
343;  Kendrick  v.  State,  10  Humph.  479  ; 
Johnson  v.  Powers,  40  Vt.  Oil;  Brown 
V.  Com.,  73  Pa.  St.  321 ;  supra,  §  161  -i|. 


CHAP.  X.]      OF   WITNESSES   SUBSEQUENTLY   DISQUALIFIED.       203 


subject  by  the  deceased,  on  his  examination  in  chief,  without  also 
giving  the  substance  of  what  he  said  upon  it  in  his  cross-examina- 
tion, it  is  inadmissible.^ 

§  166.  Mode  of  proof.  What  the  deceased  witness  testified  may- 
be proved  by  any  person  who  will  swear  from  his  own  memory ; 
or  by  notes  taken  by  any  person  who  will  swear  to  their  accu- 
racy; 2  or,  perhaps,  from  the  necessity  of  the  case,  by  the  judge^s 
own  notes,  where  both  actions  are  tried  before  the  same  judge  ; 
for,  in  such  case,  it  seems  the  judge,  from  his  position,  as  well  as 
from  other  considerations,  cannot  be  a  witness.^  But,  except  in 
this  case  of  necessity,  if  it  be  admitted  as  such,  the  better  opinion 
is,  that  the  judge's  notes  are  not  legal  evidence  of  what  a  witness 
testified  before  him  ;  for  they  are  no  part  of  the  record,  nor  is  it 
his  official  duty  to  take  them,  nor  have  they  the  sanction  of  his 
oath  to  their  accuracy  or  completeness.*     But  in  chancery,  when 


1  Wolf  V.  Wyeth,  11  Serg.  &  R.  149 ; 
Gildersleeve  v.  Caraway,  10  Ala.  260 
[Woods  V.  Keyes,  14  Allen  (Mass.),  236; 
Black  V.  Woodron,  39  Md.  194]. 

2  Mayor  of  Doncaster  v.  Day,  3  Taunt. 
267 ;  Chess  v.  Chess,  17  Serg.  &  R.  409. 
The  witness,  as  has  been  stated  in  a  pre- 
ceding note,  must  be  able  to  testify,  from 
his  recollection  alone,  that  deceased  was 
sworn  as  a  witness,  the  matter  or  thing 
which  he  was  called  to  prove,  and  the 
substance  of  what  he  stated ;  after  which 
his  notes  may  be  admitted.  Sloan  v. 
Somers,  1  Spencer  (N.  J.),  66;  supra, 
§  165,  n.  (2)  [Rhine  v.  Robinson,  27  Pa. 
St.  30;  Clark  v.  Vorce,  15  Wend.  (N.  Y.) 
193;  Jones  v.  Ward,  3  Jones  (N.  C),  L. 
24]. 

3  Glassford  on  Evid.  602;  Tait  on 
Evid.  432 ;  Regina  v.  Garard,  8  C.  &  P. 
695;  infra,  §  249.  [This  proposition  is 
very  properly  stated,  doubtfully.  Huff 
V.  Bennett,  4  Sandf.  (N.  Y.)  120;  SchoU 
V.  Miller,  5  Whart.  (Pa.)  156,  and  post, 
§  168,  n.] 

*  Miles  V.  O'Hara,  4  Binn.  108  ;  Foster 
V.  Shaw,  7  Serg.  &  R.  156;  Ex  parte 
Learmouth,  6  Madd.  113  ;  Reg.  v.  Plum- 
mer,  8  Jur.  922,  per  Gurney,  B. ;  Liv- 
ingston I'.  Cox,  8  Watts  &  Serg.  61. 
Courts  expressly  disclaim  any  power  to 
compel  the  production  of  a  judge's  notes. 
Scougull  V.  Campbell,  1  Chitty,  283; 
Graham  v.  Bowham,  Id.  284,  n.  And 
if  an  application  is  made  to  amend  a  ver- 
dict by  the  judge's  notes,  it  can  be  made 
only  to  the  judge  himself  before  whom 
the  trial  was  had.  Id.,  2  Tidd's  Pr.  770, 
r/3S.     Where  a  party,  on  a  new  trial  being 


granted,  procured,  at  great  expense,  copies 
of  a  short-hand  writer's  notes  of  the  evi- 
dence given  at  the  former  trial,  for  the 
amount  of  which  he  claimed  allowance  in 
the  final  taxation  of  costs  ;  the  claim  was 
disallowed,  except  for  so  much  as  would 
have  been  the  expense  of  waiting  on  the 
judge,  or  his  clerk,  for  a  copy  of  his  notes  ; 
on  the  ground  that  the  latter  would  have 
sufficed.  Crease  v.  Barrett,  1  Tyrw.  & 
Grang.  112.  But  this  decision  is  not  con- 
ceived to  affect  the  question,  whether  the 
judge's  notes  would  liave  been  admissible 
before  another  judge,  if  objected  to.  In 
Regina  v.  Bird,  5  Cox,  C.  C.  11,  2  Eng. 
Law  &  Eq.  444,  the  notes  of  the  judge, 
before  whom  a  former  indictment  had 
been  tried,  were  admitted  without  objec- 
tion, for  the  purpose  of  showing  what  beat- 
ings were  proved  at  that  trial,  in  order  to 
support  the  plea  of  autrefois  acquit.  In 
New  Brunswick,  a  judge's  notes  have  been 
held  admissible,  though  objected  to,  on 
the  ground  that  they  were  taken  under 
the  sanction  of  an  oath,  and  that  such  has 
been  the  practice.  Doe  v.  Murray,  1  Al- 
len, 216.  But  in  a  recent  case  in  England, 
on  a  trial  for  perjury,  the  notes  of  the 
judge,  before  whom  the  false  evidence 
was  given,  being  offered  in  proof  of  that 
part  of  the  case,  Talfourd,  J.,  refused  to 
admit  them  ;  observing,  that  "  a  judge's 
notes  stood  in  no  other  position  than  any- 
body else's  notes.  They  could  only  be 
used  to  refresh  the  memory  of  the  party 
taking  them.  It  was  no  doubt  unusual  to 
produce  the  judge  as  a  witness,  and  would 
be  highly  inconvenient  to  do  so  ;  bat  that 
did  not  make  his  notes  evidence."   Regina 


204  LAW  OF  EVIDENCE.  [PART  II. 

a  new  trial  is  ordered  of  an  issue  sent  out  of  chancery  to  a  court 
of  common  law,  and  it  is  suggested  that  some  of  the  witnesses  in 
the  former  trial  are  of  advanced  age,  an  order  may  be  made,  that, 
in  the  event  of  their  death  or  inability  to  attend,  their  testimony 
may  be  read  from  the  judge's  notes.^ 

§  167.  "When  interest  is  subsequently  acquired.  The  effect  of  an 
interest  subsequently  acquired  by  the  witness,  as  laying  a  founda- 
tion for  the  admission  of  proof  of  his  former  testimony,  remains 
to  be  considered.  It  is  in  general  true,  that  if  a  iDerson  who  has 
knowledge  of  any  fact,  but  is  under  no  obligation  to  become  a 
witness  to  testify  to  it,  should  afterwards  become  interested  in 
the  subject-matter  in  which  that  fact  is  involved,  and  his  interest 
should  be  on  the  side  of  the  party  calling  him,  he  would  not  be  a 
competent  witness  until  the  interest  is  removed.  If  it  is  releasa- 
ble  by  the  party,  he  must  release  it.  If  not,  the  objection  remains : 
for  neither  is  the  witness  nor  a  third  person  compellable  to  give 
a  release ;  though  the  witness  may  be  compelled  to  receive  one. 
And  the  rule  is  the  same  in  regard  to  a  subscribing  witness,  if 
his  interest  was  created  by  the  act  of  the  party  calling  him. 
Thus,  if  the  charterer  of  a  ship  should  afterwards  communicate 
to  the  subscribing  witness  of  the  charter-party  an  interest  in  the 
adventure,  he  cannot  call  the  witness  to  prove  the  execution  of 
the  charter-party :  nor  will  proof  of  his  handwriting  be  received ; 
for  it  was  the  party's  own  act  to  destroy  the  evidence.^  It  is, 
however,  laid  down,  that  a  witness  cannot,  by  the  subsequent 
voluntary  creation  of  an  interest,  without  the  concurrence  or 
assent  of  the  party,  deprive  him  of  tlie  benefit  of  his  testimony .^ 
But  this  rule  admits  of  a  qualification,  turning  upon  the  manner 
in  which  the  interest  was  acquired.  If  it  were  acquired  wantonly, 
as  by  a  wager,  or  fraudulently,  for  the  purpose  of  taking  off  his 
testimony,  of  which  the  participation  of  the  adverse  party  would 
generally  be  proof,  it  would  not  disqualify  him. 

But  "the  pendency  of  a  suit  cannot  prevent  third  persons  from 

V.  Cliild.SCox.C.  C.197,203.     [Evidence  Stew.  &  Port.  227, 237  ;  Schall  d.  Miller,  6 

at  former  trial  cannot  be  proved  by  a  bill  Whart.  156. 

of  exceptions  stating  it.     Kirk  u.  Mowry,  »  i  Stark.  Evid.  118;  Barlew  v.  Vow- 

24  Ohio  St.  581.]  ell,  Skin.  580;  Georjje  v.  Pierce,  cited  by 

1  Harprave  r.  Ilargrave,  19  Jnr.  957.  Puller,  J.,  in  3  T.  R.  87  ;  Pex  v.  Fox,  1 

2  Ilovill  V.  Stephenson,  5  Bing.  493;  Str.  652;  Long  v.  Bailiie,  4  Serg.  &  R. 
Hamilton  v.  Williams.  1  Ilayw.  1.39;  222;  Burgess  t'.  Lane,  8  Greenl.  165; 
Johnson  t;.  Knight,  1  N.  C.  Law,  93 ;  Jackson  i;.  Rumsey,  3  Johns.  Cas.  234, 
1  Murph.  293;  Bennett  v.  Robinson,  3  237;   infra,  §  418. 


CHAP.  X.]      OF  WITNESSES   SUBSEQUENTLY  DISQUALIFIED.       205 

transacting  business,  hona  fide^  with  one  of  the  parties  ;  and,  if  an 
interest  in  the  event  of  the  suit  is  thereby  acquired,  the  common 
consequence  of  law  must  follow,  —  that  the  person  so  interested 
cannot  be  examined  as  a  witness  for  that  party,  from  whose  suc- 
cess he  will  necessarily  derive  an  advantage."  ^  Therefore,  where, 
in  an  action  against  one  of  several  underwriters  on  a  policy  of 
insurance,  it  appeared  that  a  subsequent  underwriter  had  paid, 
upon  the  plaintiff's  promise  to  refund  the  money,  if  the  defendant 
in  the  suit  should  prevail ;  it  was  held,  that  he  was  not  a  compe- 
tent witness  for  the  defendant  to  prove  a  fraudulent  concealment 
of  facts  by  the  plaintiff,  it  being  merely  a  payment,  by  anticipa- 
tion, of  his  own  debt,  in  good  faith,  upon  a  reasonable  condition 
of  repayment.^  And  as  the  interest  which  one  party  acquires  in 
the  testimony  of  another  is  liable  to  the  contingency  of  being 
defeated  by  a  subsequent  interest  of  the  witness  in  the  subject- 
matter,  created  hona  fide,  in  the  usual  and  lawful  course  of  busi- 
ness, the  same  principle  would  seem  to  apply  to  an  interest  arising 
by  operation  of  law,  upon  the  happening  of  an  uncertain  event, 
such  as  the  death  of  an  ancestor,  or  the  like.  'But  though  the 
interest  which  a  party  thus  acquires  in  the  testimony  of  another 
is  liable  to  be  affected  by  the  ordinary  course  of  human  affairs, 
and  of  natural  events,  the  witness  being  under  no  obligation,  on 
that  account,  either  to  change  the  course  of  his  business,  or  to 
abstain  from  any  ordinary  and  lawful  act  or  employment ;  yet  it 
is  a  right  of  which  neither  the  witness  nor  any  other  person  can 
by  voluntary  act  and  design  deprive  him.  Wherever,  therefore, 
the  subsequent  interest  of  the  witness  has  been  created  either 

1  3  Campb.  3Sl,perLcl.  Ellenhorough.  2  Forrester  v.  Pigou,  3  Campb.  380; 
The  case  of  Bent  v.  Baker,  3  T.  R.  27,  s.  c.  1  M.  &  S.9;  Phelps  v.  Riley,  6  Conn, 
seems  to  liave  been  determined  on  a  simi-  266.  In  Burgess  i;.  Lane,  3  Greenl.  16-5, 
lar  principle,  as  applied  to  the  opposite  the  witness  had  voluntarily  entered  into 
state  of  facts  ;  the  subsequent  interest,  an  agreement  with  the  defendant,  against 
acquired  by  the  broker,  being  regarded  whom  he  had  an  action  pending  in  an- 
as affected  with  bad  faith,  on  the  part  of  other  court,  that  that  action  should  abide 
the  assured,  who  objected  to  his  admis-  the  event  of  the  other,  in  which  he  was 
sion.  The  distinction  taken  by  Lord  now  called  as  a  witness  for  the  plaintiff ; 
EUenborough  was  before  the  Supreme  and  the  court  held,  that  it  did  not  lie  with 
Court  of  the  United  States  in  Winship  the  defendant,  who  was  party  to  that 
V.  The  Bank  of  the  United  States,  5  agreement,  to  object  to  his  admissibility. 
Peters,  529,  541,  542,  545,  546,  5-52,  but  But  it  is  observable,  that  that  agreement 
no  decision  was  had  upon  the  question,  was  not  made  in  discharge  of  any  real 
the  court  being  equally  divided.  But  or  supposed  obligation,  as  in  Forrester  v. 
the  same  doctrine  was  afterwards  dis-  Pigou  ;  but  was  on  a  new  subject,  was 
cussed  and  recognized,  as  "  founded  on  uncalled  for,  and  purely  voluntary ;  and 
the  plainest  reasons,"  in  Eastman  v.  Win-  therefore  subjected  the  adverse  party  to 
Bhip,  14  Pick.  44;  10  Wend.  162,  164,  ace.  the  imputation  of  bad  faith  in  making  it. 


206  LAW   OF   EVIDENCE.  [PART  H. 

wantonly,  or  in  bad  faith,  it  does  not  exclude  him ;  and  doubt- 
less the  participation  of  the  adverse  party  in  the  creation  of  such 
interest  would,  if  not  explained  by  other  cii'cumstances,  be  very 
strong  prima  facie  evidence  of  bad  faith  ;  as  an  act  of  the  witness, 
uncalled  for,  and  out  of  the  ordinary  course  of  business,  would 
be  regarded  as  wanton.^ 

§  168.  Previous  deposition.  If,  in  cases  of  disquahfying  interest, 
the  witness  has  previously  given  a  deposition  in  the  cause,  the 
deposition  may  be  read  in  chancery,  as  if  he  were  since  deceased, 
or  insane,  or  otherwise  incapacitated.  It  may  also  be  read  in  the 
trial,  at  law,  of  an  issue  out  of  chancery.  In  other  trials  at  law, 
no  express  authority  has  been  found  for  reading  the  deposition  ; 
and  it  has  been  said,  that  the  course  of  practice  is  otherwise  ;  but 
no  reason  is  given,  and  the  analogies  of  the  law  are  altogether  in 
favor  of  admitting  the  evidence.^  And,  as  it  is  hardly  possible  to 
conceive  a  reason  for  the  admission  of  prior  testimony  given  in 
one  form  wliich  does  not  apply  to  the  same  testimony  given  in 
any  other  form,  it  would  seem  clearly  to  result  that  where  the 
witness  is  subsequently  rendered  incompetent  by  interest,  law- 
fully acquired,  in  good  faith,  evidence  may  be  given  of  what  he 
formally  testified  orally,  in  the  same  manner  as  if  he  were  dead ; 
and  the  same  principle  will  lead  us  farther  to  conclude,  that  in 
all  cases  where  the  party  has,  without  his  own  fault  or  concur- 
rence, irrecoverably  lost  the  power  of  producing  the  witness 
again,  whether  from  physical  or  legal  causes,  he  may  offer  the 
secondary  evidence  of  what  he  testified  in  the  former  trial.  If 
the  lips  of  the  witness  are  sealed,  it  can  make  no  difference  in 
principle,  whether  it  be  by  the  finger  of  death,  or  the  finger  of 
the  law.  The  interest  of  the  witness,  however,  is  no  excuse  for 
not  producing  him  in  court ;  for  perhaps  the  adverse  party  will 
waive  any  objection  on  that  account.  It  is  only  when  the  objec- 
tion is  taken  and  allowed,  that  a  case  is  made  for  the  introduc- 
tion of  secondary  evidence.^ 

1  Sec  infra  S  418,  where  the  subject  is  sioiis  in  Pennsylvania.    See  also  1  Stark. 
.gain  conskiLTo.l.  E vid.  264.  265  ;  1  Smith's  Chan.  Pr  344 ; 

2  Tiiis  is  now  the  established  practice  Gosse  v.  Tracy,  1  P.  W.  287  ;  8.  c.  J  Vern. 
in  chancery,  Groslcy  on  Evid.  80(5,  307  ;  099  ;  Andrews  v.  Palmer,  1  Ves.  &  B.  21; 
and  in  Chess  v.  Chess,  17  Serp.  &  R.  412,  Luttrell  i'.  Reynell,  1  Mod.  284;  Jones  v. 
it  was  conceded  hy  Tod,  J.,  that  the  rca-  Jones,  1  Cox,  184  ;  Union  Bank  v. 
son  and  principle  of  the  rule  applied  with  Knnpp,  3  Pick.  108,  100,  per  Putnam,  J. ; 
equal  force  in  trials  at  law;  though  it  Wafer  «.  Hcmkcn.  9  Rob.  20.]  jSee  also 
was  deemed  in  that  case  to  have  been  Scammon  v.  Scammon,  :V.i  N.  II.  o2,  o8.J 
settled  otherwise,  by  the  course  of  deci-  *  [Our  author  seems,  in  the  preceding 


CHAP.  X.]       OF    WITNESSES    SUBSEQUENTLY   DISQUALIFIED.      207 


sections,  to  have  stated  some  points  more 
loosely  than  is  consistent  with  his  usual 
accuracy.  We  see  no  more  reason  why 
the  judge,  presiding  at  a  former  trial, 
should  be  exempted  from  verifying  his 
minutes,  if  required  by  oath  and  by 
cross-examination,  than  any  other  wit- 
ness. Our  own  minutes  have  always 
been  used,  in  such  cases,  by  consent;  but 
we  never  supposed  they  possessed  any 
legal  verity.     And  we  have  never  sup- 


posed the  rule  of  admitting  the  testimony 
of  a  deceased  witness,  at  a  former  trial, 
extended  to  all  cases  where  the  witness, 
for  any  cause,  could  not  be  produced. 
It  will  be  found,  we  believe,  that  that 
rule  applies  to  the  deposition  of  a  witness 
de  bene  esse,  or  in  perpeluam,  and  not  to  his 
testimony  upon  former  trials.  Judge 
Redfield's  addendum  to  this  section  in  the 
twelfth  edition.] 


208  LAW   OF  EVIDENCE.  [PAKT  11. 


CHAPTER    XI. 

OF  ADanSSIONS. 

§  169.  Admissions  and  confessions.     Under  the  head  of  excep- 
tions to  the  rule  rejecting  hearsay  evidence,  it  has  been  usual  to 
treat  of  admissions  and  confessions   by  the  party,   considering 
them  as  declarations  against  his  interest,  and  therefore  probably 
true.     But  in  regard  to  many  admissions,  and  especially  those 
implied  from  conduct  and  assumed  character,  it  cannot  be  sup- 
posed that  the  party,  at  the  time  of  the  principal  declaration  or 
act  done,  believed  himself  to  be  speaking  or  acting  against  his 
own  interest;  but  often  the  contrary.      Such  evidence  seems, 
therefore,  more  properly  admissible  as  a  snhstitute  for  the  ordi- 
nary and  legal  proof,  either  in  virtue  of  the  direct  consent  and 
waiver  of  the  party,  as  in  the  case  of  explicit  and  solemn  admis- 
sions ;  or  on  grounds  of  public  policy  and  convenience,  as  in  the 
case  of  those  implied  from  assumed  character,  acquiescence,  or 
conduct.^     It  is  in  this  light  that  confessions  and  admissions  are 
regarded  by  the  Roman  law,  as  is  stated  by  Mascardus.     "  lUud 
igitur  in  primis,  nt  hinc  potissimum  exordiar,  non  est  ignoran- 
dum,  quod  etsi  confessioni  inter  probationum  species  locum  in 
prsesentia  tribuerimus;    cuncti  tamen  fere  Dd.  unanimes  sunt 
arbitrati,  ipsam  potius  esse  ab  onere  probandi  relevationem  quam 
proprie  probationem.^     Many  admissions,  however,  being  made 
by  third  persons,  are  receivable  on  mixed  grounds  ;   partly  as 
belonging  to  the  res  gestce,  partly  as  made  against  the  interest  of 
the  person  making  them,  and  partly  because  of  some  privity 

1  See  supra,  §  27.  sumptio  juris  et  de  jure  ;  thus  constituting 

2  I^Iascard.'  i)e  Probat.  vol.  i.,  Quajst.  an  exception  to  the  conclusiveness  of  tins 
7  n  1  10  11;  Menochius,  De  Praesump.,  class  of  presumptions.  But  to  give  a 
lib  1  Qujcs.  01,  n.  G;  Alciatus,  De  Praj-  confession  this  effect,  certain  things  are 
Bump.,  I)ar3  2,  n.  4.  Tlie  Roman  law  essential,  which  Mascardus  cites  out  ot 
distiiiguisiies,  with  great  clearness  and  Tancred:  — 

precision,  between  confessions  extra  judi-  „  ^^^^^^  gpontA,  sciens,  contra  se,  ubi  jus  fit; 

cium,  and  confessions  mjndtcio;  treating  Uecnatura, favor,  lis jusverepugnet.ethosUs." 
the  former  as  of  very  Uttle  and  often  of  v^n-     ik  40 

no  weight  unless  corroborated,  and  tlie  Mascard.  uhi  sup.  n.  15;   \  id.  D^g.  I'D-  ^^ 

latter  as  generally,  if  not  always,  conclu-  tit.  2,  de  Confessis;  Cod.  lib.   i,  tit.  oJ; 

give  even  to  the  overthrow  of  the  prae-  Van  Leeuwen's  Comm.,  book  v.  c.  21. 


CHAP.  XI.]  OF  AD:\nSSIONS.  209 

with  liim  against  whom  they  are  offered  in  evidence.  The  whole 
subject,  therefore,  properly  falls  under  consideration  in  this  con- 
nection. 

§  170.  Distinguished.  In  our  law,  the  term  admission  is  usually 
applied  to  civil  transactions^  and  to  those  matters  of  fact,  in  crimi- 
nal cases,  which  do  not  involve  criminal  intent ;  the  term  confes- 
sion being  generally  restricted  to  achnoivledgments  of  guilt.  We 
shall  therefore  treat  them  separately,  beginning  with  admissions. 
The  rules  of  evidence  are  in  both  cases  the  same.  Thus,  in  the 
trial  of  Lord  Melville,  charged,  among  other  things,  with  crimi- 
nal misapplication  of  moneys  received  from  the  exchequer,  the 
admission  of  his  agent  and  authorized  receiver  was  held  sufficient 
proof  of  the  fact  of  his  receiving  the  public  money ;  but  not  ad- 
missible to  establish  the  charge  of  any  criminal  misapplication  of 
it.  The  law  was  thus  stated  by  Lord  Chancellor  Erskine  :  "  This 
first  step  in  the  proof"  (namely,  the  receipt  of  the  money) 
"  must  advance  by  evidence  applicable  alike  to  civil  as  to  crimi- 
nal cases ;  for  a  fact  must  be  established  by  the  same  evidence, 
whether  it  is  to  be  followed  by  a  criminal  or  civil  consequence  : 
but  it  is  a  totally  different  question,  in  the  consideration  of  crimi- 
nal as  distinguished  from  civil  justice,  how  the  noble  person  now 
on  trial  may  be  affected  by  the  fact  when  so  established.  The 
receipt  by  the  paymaster  would  in  itself  involve  him  civilly,  but 
could  by  no  possibility  convict  him  of  a  crime."  ^ 

§  171.  Parties  to  the  record  and  privies.  We  shall  first  consider 
the  person  whose  admissions  may  be  received.  And  here  the 
general  doctrine  is,  that  the  declarations  of  a  party  to  the  record^ 
or  of  one  identified  in  interest  tvith  him,  are,  as  against  such  party, 
admissible  in  evidence.^    If  they  proceed  from  a  stranger,  and 

1  29  Howell's  State  Trials,  col.  764.  kind  of  evidence  by  which  it  is  to  be 

2  Spargo  V.  Brown,  9  B.  &  C.  935,  per  proved.  See  Smith  v.  Burnliam,  2  Sumn. 
Bayley,  J. ;  infra,  §§  180,  203.  In  tlie  612 ;  Brandon  v.  Cabiness,  10  Ala.  156 ; 
court  of  chancery ,'in  England,  evidence  is  Story,  Equity  Plead.  §  265a,  and  n.  (1), 
not  received  of  admissions  or  declarations  where  this  subject  is  fully  discussed, 
of  the  parties,  which  are  not  put  in  issue  And  in  England,  the  rule  has  recently 
by  thepleadings, and  which  there  was  not,  been  qualified,  so  far  as  to  admit  a  writ- 
therefore,  any  opportunity  of  explaining  ten  admission  by  the  defendant  of  his 
or  disproving.  Copcland  v.  Toulmin,  7  liability  to  the  plaintiff,  in  the  matter  of 
Clark&Fin. 350,373;  Austin  y.Ciiambers,  the  pending  suit.  Malcolm  v.  Scott,  3 
6  Clark  &  Fin.  1 ;  Atwood  v.  Small,  Id.  234  Hare,  63 ;  McMahon  v.  Burchell,  1  Coop. 
[Perry  y.  Simpson  Mfg.  Co.,  40  Conn.  313.]  Cas.  temp.  Cottenham,  475;  7  Law  Rev, 
But  in  the  United  vStates  this  rule  lias  not  209.  See  the  cases  collected  by  Mr. 
been  adopted ;  and  it  is  deemed  sufficient  if  Cooper  in  his  note  appended  to  that  case, 
the  proposition  to  be  established  is  stated  It  seems,  that  pleadings,  whether  in 
in  the  bill,  without  stating  the  particular  equity  or  at  common  law,  are  not  to  be 

VOL.   I.  14 


210 


LAW   OF  EVIDENCE. 


[PAET  n. 


cannot  be  brought  home  to  the  party,  they  are  inadmissible, 
unless  upon  some  of  the  other  grounds  already  considered.^ 
Thus,  the  admissions  of  a  payee  of  a  negotiable  promissory  note, 
not  overdue  when  negotiated,  cannot  be  received  in  an  action  by 
the  indorsee  against  the  maker,  to  impeach  the  consideration, 
there  being  no  identity  of  interest  between  him  and  the  plaintiif.^ 
§  172.  Parties  jointly  interested.  This  general  rule,  admitting 
the  declarations  of  a  party  to  the  record  in  evidence,  applies  to 
all  cases  where  the  party  has  any  interest  in  the  suit,  whether 
others  are  jouit  parties  on  the  same  side  with  him  or  not,  and 
howsoever  the  interest  may  appear,  and  whatever  may  be  its 
relative  amount.^  But  where  the  party  sues  alone,  and  has  no 
interest  in  the  matter,  his  name  being  used,  of  necessity,  by  one 
to  whom  he  has  assigned  all  his  interest  in  the  subject  of  the  suit, 
though  it  is  agreed  that  he  cannot  be  permitted,  by  his  acts  or 
admissions,  to  disparage  the  title  of  his  innocent  assignee  or 
vendee,  yet  the  books  are  not  so  clearly  agreed  in  the  mode  of 
restraining  him.  That  chancery  will  always  protect  the  assignee, 
either  by  injunction  or  otherwise,  is  very  certain ;  and  formerly 
this  was  the  course  uniformly  pursued  ;  the  admissions  of  a  party 
to  the  record,  at  common  law,  being  received  against  him  in  all 


treated  as  positive  allegations  of  the 
truth  of  the  facts  therein  stated,  for  all 
purposes ;  but  only  as  sta'tements  of  the 
case  of  the  party,  to  be  admitted  or 
denied  by  the  opposite  side,  and,  if  de- 
nied, to  be  proved,  and  ultimately  to  be 
submitted  to  judicial  decision.  Boileau 
V.  Rutlin,  2  Exch.  GOo.  [See  also  post, 
vol.  iii.  §  "276.  Answers  of  a  party  to  a 
suit  to  interrogatories  tiled  in  the  ordi- 
nary mode  of  practice  arc  competent 
evidence  ngainst  him  of  the  facts  stated 
therein,  in  anotlier  suit,  although  the 
issues  in  tbe  two  suits  be  dilferent.  Wil- 
liams V.  Clionev,  iJ  (irav,  '.^15;  Jndd  c. 
Gibbs,  Id  53!).  'See  Clnircli  v.  Slielton,  2 
Curtis.  C.  C.  271;  State  v.  Littletield,  3 
K.  I.  121.1 

1  Supra,  §§  128.  141,  147,  150.  There 
must  be  some  evidence  of  the  identity  of 
the  person  wlu).<e  admissions  are  otYered 
in  evidence  with  tlie  jiarty  in  question. 
Thus,  where  the  witness  asked  for  the 
defendant  by  name,  at  his  lodgings,  and 
a  person  came  to  the  door  professing  to 
be  the  one  asked  for  ;  the  witness  being 
imacquainted  with  the  dofend;int's  per- 
son then  and  since  ;  this  was  held  sulli- 
cient  to  admit  the  conversation  which 


then  was  had  between  the  witness  and 
this  person,  as  being,  prima  fadr,  the  lan- 
guage of  the  defendant.  Reynolds  v. 
Staines,  2  C.  &  K.  745.  [Admissions  of  a 
party  may  be  proved,  although  they 
relate  to  a  written  instrument.  Looniis 
V.  Wadhani,  8  Gray,  550;  Smith  v. 
Palmer,  0  Cush.  (Mass.)  513.  Aihnis- 
sions  made  by  an  infant  are  admissible 
in  a  suit  brought  against  him  after  his 
arrival  at  his  majority.  O'Neill  v.  Read, 
7  Ir.  Law,  434.] 

■^  Barough  v.  White,  4  B.  &  C.  325; 
Bristol  V.  Dan,  12  Wend.  142. 

3  Bauerman  v.  Hadenius,  7  T.  R.  G63; 
s.  c.  2  Ksp.  t)53.  In  this  case  the  con- 
signees brouglit  an  action  in  the  luime  of 
the  consignor,  against  the  ship-mnster,  for 
a  dnmnge  to  the  goods,  occasioned  by  his 
negligence;  and  without  sui)])osing  some 
interest  to  remnin  in  the  consignor,  tho 
action  could  not  be  maintained.  It  was 
on  this  ground  that  Lawrence,  J.,  placed 
the  decision.  See  also  Norden  r.  Wil- 
liamson, 1  Taunt.  878;  jNlandeville  v. 
Welch,  5  Wheat.  283,  280 ;  Dan  et  al.  v. 
Brown,  4  Cowen,  483,  4'J2  [Black  v. 
Lamb,  1  Beasley,  108J. 


CHAP.  XI.]  OF   ADMISSIONS.  211 

cases.  But,  in  later  times,  the  interests  of  an  assignee,  suing  in 
the  name  of  his  assignor,  have  also,  to  a  considerable  extent,  been 
protected,  in  the  courts  of  common  law,  against  the  effect  of  any 
acts  or  admissions  of  the  latter  to  his  prejudice.  A  familiar  ex- 
ample of  this  sort  is  that  of  a  receij)t  in  full,  given  by  the  assignor, 
being  nominal  plaintiff,  to  the  debtor,  after  the  assignment ; 
which  the  assignee  is  permitted  to  impeach  and  avoid,  in  a  suit 
at  law,  by  sho^ving  the  previous  assignment.^ 

§  173.  Nominal  and  real  parties.  But  a  distinction  has  been 
taken  between  such  admissions  as  these  wliich  are  given  in  evi- 
dence to  the  jury  under  the  general  issue,  and  are  therefore 
open  to  explanation  and  controlling  proof,  and  those  in  more 
solemn  form,  such  as  releases  which  are  specially  pleaded 
and  operate  by  way  of  estoppel ;  in  which  latter  cases  it  has  been 
held,  that,  if  the  release  of  the  nominal  plaintiff  is  pleaded  in  bar, 
the  courts  of  law,  sitting  in  bank,  will  administer  equitable  relief, 
by  setting  aside  the  plea,  on  motion  ;  but  that,  if  issue  is  taken 
on  the  matter  pleaded,  such  act  or  admission  of  the  nominal 
plaintiff  must  be  allowed  its  effect  at  law  to  the  same  extent  as  if 
he  were  the  real  plaintiff  in  the  suit.^  The  American  courts, 
however,  do  not  recognize  this  distinction ;  but,  where  a  release 
from  the  nominal  plamtiff  is  pleaded  in  bar,  a  prior  assignment 
of  the  cause  of  action,  with  notice  thereof  to  the  defendant,  and 
an  averment  that  the  suit  is  prosecuted  by  the  assignee  for  his 
own  benefit,  is  held  a  good  replication.^  Nor  is  the  nominal 
plaintiff  permitted  by  the  entry  of  a  retraxit,  or  in  any  other 
manner,  injuriously  to  affect  the  rights  of  liis  assignee  in  a  suit  at 
law.* 

1  Henderson  et  al.  v.  Wild,  2  Campb.  Anon.,  1    Salk.  260 ;  Payne  v.  Rogers, 

561.     Lord  Ellenborough,  in  a  previous  Doug.  407;  Skaife  v.  Jackson,  3  B.  &  C. 

case  of  tlie  same  kind,  thought  himself  421. 

not  at  liberty,  sitting  at  Nisi  Prius,  to  ^  Mandeville  v.  Welch,  5  Wheat.  277, 
overrule  the  defence.  Alner  v.  George,  283;  Andrews  v.  Beeker,  1  Johns.  Cas. 
1  Campb.  39'2;  Frear  v.  Evertson,  20  411;  Raymond  v.  Squire,  11  Johns.  47; 
Johns.  142.  See  also  Payne  v.  Rogers,  Littlefield  v.  Story,  3  Johns.  42-5 ;  Daw- 
Doug.  407 ;  Winch  v.  Keeley,  1  T.  R.  son  v.  Coles,  16  Johns.  51 ;  Kimball  v. 
619;  Cotkshott  r.  Bennett,  2  T.  11.763;  Huntington,  10  Wend.  675;  Owings  v. 
Lane  v.  Chandler,  3  Smith,  77,  83;  Skaife  Low,  5  Gill  &  Johns.  134. 
r.  Jackson,  3  B.  &  C.  421 ;  Appleton  v.  *  Welch  v:  Mandeville,  1  Wheat.  2.33. 
Boyd,  7  Mass.  131 ;  Tiermen  y.  Jackson,  "By  the  common  law,  choses  in  action 
5  Peters,  5^0 ;  Sargeant  v.  Sargeant,  3  were  not  assignable  except  to  the  crown. 
Waslib.  371 ;  Head  v.  Shaver,  9  Ala.  791.  The  civil  law  considers  them  as,  strictly 

^  Alner  v.   George,  1  Campb.  305,  per  speaking,  not  assignable  ;    but,  by   the 

Ld.  Ellenborough  ;  Gibson  v.  Winter,  5  invention  of  a  fiction,  the  Roman  juris- 

B.  &  A.  06;  Craib  t-.DAeth,  7  T.  R.  670,  consults  contrived  to  attain  this  object, 

n.  (b)  ;   Leigh  v.  Leigh,  1   13.  &  P.  447;  The  creditor  who  wished  to  transfer  his 


212 


LAW   OF  EVIDENCE. 


[PAET  n. 


§  174.  Parties  jointly  interested.  Though  the  admissions  of  a 
party  to  the  record  are  generally  receivable  in  evidence  against 
him,  3^et,  where  there  are  several  parties  on  the  same  side^  the  ad- 
missions of  one  are  not  admitted  to  affect  the  others,  who  may 
happen  to  be  joined  with  him,  unless  there  is  some  joint  interest 
or  privity  in  design  between  them ;  ^  although  the  admissions 
may,  in  proper  cases,  be  received  against  the  person  who  made 
them.  Thus,  in  an  action  against  joint  makers  of  a  note,  if  one 
suffers  judgment  by  default,  his  signature  must  still  be  proved 
against  the  other.^  And  even  where  there  is  a  joint  interest,  a 
release,  executed  by  one  of  several  plaintiffs,  will,  in  a  clear  case 
of  fraud,  be  set  aside  in  a  court  of  law.^  But  in  the  absence  of 
fraud,  if  the  parties  have  a  joint  interest  in  the  matter  in  suit, 
whether  as  plaintiffs  or  defendants,  an  admission  made  by  one  is, 
in  general,  evidence  against  all.*     They  stand  to  each  other,  in 


right  of  action  to  another  person,  consti- 
tuted him  his  attorney,  or  procurator  in 
rem  suam  as  it  was  called;  and  it  was 
stipulated  that  the  action  should  be 
brought  in  the  name  of  the  assignor,  but 
for  the  benefit  and  at  the  expense  of  the 
assignee.  Pothier  de  Vente,  No.  550. 
After  notice  to  the  debtor,  this  assign- 
ment operated  a  complete  cession  of  the 
debt,  and  invalidated  a  payment  to  any 
other  person  than  the  assignee,  or  a  re- 
lease from  any  other  person  than  him. 
Id.  110,  554;  Code  Napoleon,  liv.  3,  tit.  G ; 
De  la  Vente,  c.  8,  §  1090.  The  court  of 
chancery,  imitating,  in  its  usual  spirit,  the 
civil  law  in  this  particular,  disregarded 
the  rigid  strictness  of  the  common  law, 
and  protected  the  rights  of  tiie  assignee 
of  chosfis  in  (iction.  This  liberality  was  at 
last  adojjted  by  the  courts  of  common 
law,  who  now  consider  an  assignment  of 
a  chose  in  action  as  substantially  valid, 
only  preserving,  in  certain  cases,  the 
form  of  an  action  commenced  in  the 
name  of  the  assignor,  the  beneficial  in- 
terest and  control  of  the  suit  being,  how- 
ever, consiilered  as  completely  vested  in 
the  assignee,  as  procurator  in  rem  suam. 
See  Master  v.  Miller,  4  T.  R.  ;]40;  An- 
drews i'.  Beecker,  1  Johns.  Cas.41 1 ;  Bates 
('.  New  York  Insurance  Companv,  3 
Johns.  Cas.  242;  Wanlell  v.  Eden,  1 
Johns.  532,  in  tiolis ;  Carver  t;.  Tracy, 
•S  Johns  420;  Raymond  i-.  Squire,  ll 
Johns.  47  ;  Van  Vechten  v.  Greves,  4 
Johns.  40(J;  Weston  v.  Barker,  12  Joiins. 
27')."  See  the  reporter's  note  to  1 
Wheat.  2;»7.  But  where  the  nominal 
plaintiff  was  constituted,  by  the  party  in 


interest,  liis  agent  for  negotiating  the 
contract,  and  it  is  expressly  made  with 
him  alone,  he  is  treated,  in  an  action 
upon  such  contract,  in  all  respects  as  a 
party  to  the  cause  ;  and  any  defence 
against  him  is  a  defence,  in  that  action, 
against  the  cestui  que  trust,  suing  in  his 
name.  Therefore,  where  a  broker,  in 
whose  name  a  policy  of  insurance  under 
seal  was  effected,  brought  an  action  of 
covenant  thereon,  to  which  payment  was 
pleaded ;  it  was  held  that  payment  of 
the  amount  of  loss  to  the  broker,  by 
allowing  him  credit  in  account  for  that 
sum,  against  a  balance  for  premiums  due 
from  him  to  the  defendants,  was  a  good 
payment,  as  between  the  plaintiff  on  the 
record  and  the  defendants,  and,  there- 
fore, an  answer  to  the  action.  Gibson  v. 
Winter  et  al.,  5  B.  &  Adol.  ^6.  This  case, 
however,  may,  with  equal  and  perhaps 
greater  propriety,  be  referred  to  the  law 
of  agency.  See  Riciiardson  i:  Anderson, 
1  Campb.  43,  n. ;  Story  on  Agency,  §  413, 
420-434. 

'  See  snprn,  §§  111,  112  ;  Dan  et  nl.  v. 
Brown,  4  Cowen,  483,  492;  Rex  v.  llard- 
wick,  11  East,  578,  589,  per  Le  Blanc,  J.; 
Whitcomb  i;.  Whiting,  2  Doug.  0-J2. 

2  Gray  i>.  Palmer,  1  Esp.  135.  See 
also  Sheriff  v.  Wiiks,  1  East,  48.. 

3  Jones  et  al.  v.  Herbert,  7  Taunt.  421 ; 
Loring  et  al.  v.  Brackett,  3  Pick.  403; 
Skaife  et  al.  v.  Jackson,  3  B.  &  C.  421; 
Henderson  ft  al.  r.  Wild,  2  Campb.  501. 

*  Sucii  was  the  doctrine  laid  down  by 
Ld.  Mansfield  in  Wiiitcomb  i-.  Whiting,  2 
Doug.  052.  Its  propriety,  and  tiie  extent 
of  its  aiiplication,  have  been  much  dis- 


CHAP.  XI.] 


OF   AD:\nSSIONS. 


213 


this  respect,  in  a  relation  similar  to  that  of  existing  copartners. 
Thus,  also,  the  act  of  making  a  partial  payment  within  six  years, 
by  one  of  several  joint  makers  of  a  promissory  note,  takes  it  out 
of  the  statute  of  limitations.^  And  where  several  were  both 
legatees  and  executors  in  a  will,  and  also  appellees  in  a  question 
upon  the  probate  of  the  will,  the  admission  of  one  of  them,  as  to 
facts  which  took  place  at  the  time  of  making  the  will,  showing 
that  the  testatrix  was  imposed  upon,  was  held  receivable  in  evi- 
dence against  the  validity  of  the  will.^     And  where  two  were 


cussed,  and  sometimes  questioned  ;  but  it 
seems  now  to  be  clearly  established.  See 
Perham  v.  Ravnal,  2  Bing.  306 ;  Burleigh 
V.  Stott,  8  B.  &  C.  36 ;  Wyatt  v.  Hodson, 
8  Bing.  309 ;  Brandram  v.  Wharton,  1  B. 
&  A.  467  ;  Holme  v.  Green,  1  Stark.  488. 
See  also,  accordingly.  White  (-•.  Hale,  3 
Pick.  291;  Martin  v.  Root,  17  Mass.  222; 
Hunt  V.  Briiiham,  2  Pick.  581 ;  Frye  v. 
Barker,  4  Pick.  382;  Beitz  v.  Fuller,  1 
McCord,  541 ;  Johnson  v.  Beardslee,  1 
Johns.  3;  Bound  v.  Lathrop,  4  Conn.  336; 
Coit  V.  Tracy,  8  Conn.  268,  276,  277; 
Getchell  V.  Heald,  7  Greenl.  26;  Owings 
r.  Low,  5  Gill  &  Johns.  144;  Patterson  v. 
Choate,  7  Wend.  441 ;  Mclntire  v.  Oliver, 
2  Hawks,  209;  Cady  v.  Shepherd,  11 
Pick.  400;  Van  Reimsdvk  v.  Kane,  1 
Gall.  635,  636  [Barrick'y.  Austin,  21 
Barb.  241;  Camp  v.  Dill,  27  Ala.  553]. 
But  see  Bell  v.  Morrison,  1  Peters,  351. 
But  the  admission  must  be  distinctly 
made  by  a  party  still  liable  upon  the 
note ;  otherwise  it  will  not  be  binding 
against  the  others.  Therefore,  a  pay- 
ment appropriated,  by  the  election  of  the 
creditor  only,  to  the  debt  in  question,  is 
not  a  sufficient  admission  of  that  debt, 
for  this  purpose.  Holmes  v.  Green,  ubi 
sup.  Neither  is  a  payment,  received 
under  a  dividend  of  the  effects  of  a  bank- 
rupt promisor.  Brandram  i'.  Wharton, 
xibi  sup.  In  this  last  case,  the  opposing 
decision  in  Jackson  v.  Fairbank,  2  H.  Bl. 
340,  was  considered  and  strongly  disap- 
proved ;  but  it  was  afterwards  cited  by 
Holroyd,  J.,  as  a  valid  decision,  in  Bur- 
leigh V.  Stott,  8  B.  &  C.  36.  The  admis- 
sion where  one  of  the  promisors  is  dead, 
to  take  the  case  out  of  tlie  statute  of  lim- 
itations against  him,  must  have  been 
made  in  his  lifetime,  Burleigh  v.  Stott, 
supra ;  Slatter  v.  Lawson,  1  B.  &  Ad.  396; 
and  by  a  party  originally  liable,  Atkins 
V.  Tredgold,  2  B.  &  C.  23.  This  effect  of 
the  admission  of  indebtment  by  one  of 
several  joint  promisors,  as  to  cases  barred 
by  the  statute  of  limitations,  when  it  is 
merely  a  verbal  admission,  witliout  part 
payment,  is  now  restricted  in  England, 


to  the  party  making  the  admission,  by 
Stat.  9  Geo.  IV.  c.  14  (Lord  Tenterdcn's 
Act).  So  in  Massachusetts,  by  Gen.  Stat, 
c.  155,  §§  14,  16;  and  in  Vermont,  Rev. 
Stat.  c.  58,  §§  23,  27.  The  application 
of  this  doctrine  to  partners,  after  the 
dissolution  of  the  partnership,  has  al- 
ready been  considered.  Supra,  §  112,  n. 
Whethera  written  acknowledgment,  made 
by  one  of  several  partners,  stands  upon 
different  ground  from  that  of  a  simi- 
lar admission  by  one  of  several  joint 
contractors,  is  an  open  question.  Clark 
V.  Alexander,  8  Jur.  496,  498.  See  post, 
vol.  ii.  §§  441,  444;  Pierce  v.  Wood,  3 
Foster,  520.  [But  more  recent  cases, 
both  in  this  country  and  in  England,  have 
denied  that,  from  tlie  mere  fact  of  part 
payment,  tlie  jury  are  authorized  to  infer 
a  promise  to  pay  the  rest.  Davies  v. 
Edwards,  6  Eng.  L  &  Eq.  550;  s.  c-  15 
Jur.  1044,  where  Jackson  v.  Fairbank, 
and  Brandrum  r.  Wharton,  are  said  not 
to  iiave  been  well  considered.  So  now 
bv  Stat.  19  &  20  Vict.  c.  97  ;  Jackson  v. 
Wooley,  8  E.  &  B.  784  ;  Smith  v.  W^-st- 
moreland,  12  S.  &  M.  (Miss.)  663  ;  David- 
son V.  Harrison,  33  Miss.  41 ;  Roscoe  v. 
Hale,  7  Gray  (Mass.),  274;  Stoddard  v. 
Doane,  Id.  387  ;  and  note  to  Bradfield  i'. 
Tupper,  7  Eng.  L.  &  Eq.  541.  Also 
Shoemaker  v.  Benedict,  1  Ker.  (X.  Y.) 
176;  Coleman  v.  Fobes,  22  Pa.  308; 
Bush  V.  Stowell,  71  Pa.  St.  208  ;  Angell 
on  Limitations,  6th  ed.  §§  240,  260,  where 
the  subject,  both  as  to  payments  and  ad- 
missions, is  fully  treated,  and  the  authori- 
ties are  collected.] 

1  Burleigh  v.  Stott,  8  B.  &  C.  36 ; 
Munderson  v.  Reeve,  2  Stark.  Evid.  484 ; 
Wyatt  V.  Hodson,  8  Bing.  309  ;  Chipjien- 
dale  V.  Thurston,  4  C.  &  P.  98;  s.  c.  1  M. 
&  M.  411 ;  Pease  v.  Hirst,  10  B.  &  C.  122. 
But  it  must  be  distinctly  shown  to  be  a 
payment  on  account  of  the  particular 
debt.     Holme  v.  Green,  1  Stark.  488. 

2  Atkins  V.  Sanger  et  al.,  1  Pick.  192. 
See  also  Jackson  v.  Vail,  7  Wend.  125 ; 
Osgood  V.  The  Manhattan  Co.,  3  Cowen, 
612. 


214 


LAW   OF   EVIDENCE. 


[PAUT  n. 


bound  in  a  single  bill,  the  admission  of  one  was  held  good  against 
both  defendants.^ 

§  175.  Corporators.  In  settlement  cases,  it  has  long  been  held 
that  declarations  by  rated  parishioners  are  evidence  against  the 
parish ;  for  they  are  parties  to  the  cause,  though  the  nominal 
parties  to  the  appeal  be  church-wardens  and  overseers  of  the  poor 
of  the  parish.2  The  same  principle  is  now  applied  in  England  to 
all  other  prosecutions  against  towns  and  parishes,  in  respect  to 
the  declarations  of  ratable  inhabitants,  they  being  substantially 
parties  to  the  record.-^  Nor  is  it  necessary  first  to  call  the  inhabi- 
tant, and  show  that  he  refuses  to  be  examined,  in  order -to  admit 
his  declarations.*  And  the  same  principle  would  seem  to  apply 
to  the  inhabitants  of  towns,  counties,  or  other  territorial  political 
divisions  of  this  country,  who  sue  and  are  prosecuted  as  inhabi- 
tants, eo  nomine,  and  are  termed  quasi  corporations.  Being  parties 
personally  liable,  their  declarations  are  admissible,  though  the 
value  of  the  evidence  may,  from  circumstances,  be  exceedingly 
lio-ht.5 


1  LowQ  V.  Boteler  et  al.,  4  Har.  & 
McHen.  346 ;  Vicary's  case,  1  Gilbert, 
Evid.  by  Lofft,  p.  50,  n. 

-  Rex  V.  Inhabitants  of  Hardwick,  11 
East.  579.     See  snpm,  §§  128,  129. 

8  Reg.  V.  Adderbury,  5  Ad.  &  El.  n.  s. 
187. 

*  Rex  (\Inhabitants  of  Whitley  Lower, 

1  M.  &  S.  037  ;  Rex  v.  Inhabitants  of 
Woburn,  10  East,  3u5. 

5  11  East,  586,  per  Ld.  Ellenborough  ; 

2  Stark.  Evid.  580.  Tlie  statutes  render- 
ing (jitiisi  corporators  competent  witnesses 
(see  51  Geo.  III.  c.  170 ;  3  &  4  Vict.  c.  25) 
are  not  understood  as  interfering  with  the 
rule  of  evidence  respecting  admissions, 
riiil.  &  Am.  on  Evid.  395,  and  n.  (2) ; 
1  Phil.  Evid.  375,  n.  (2).  In  some  of  the 
United  States,  similar  statutes  have  been 
enacted,  hh.  Vermont  (Rev.  Code,  1839), 
c.  31,  §  18;  Massacliiisetts,  Rev.  Stat.  c. 
94,  §  54  ;  Delnware  (Rev.  Code,  1829),  p. 
444  ;  New  York,  Rev.  Stat.  vol.  i.  pp. 
408,  439  (3d  ed.) ;  Mnine,  Rev.  Stat.  1840, 
c.  115,  §  75;  New  Hampshire,  Rev.  Stat. 
1842,  c.  188,  §  12  ;  Pennsi/lrauin,  Dunl. 
Dig.  pp.  215, '913,  1019,  11G5;  Midiiqnu, 
Rev.  Stat.  1840,  c.  102.  §  81.  In  several 
States,  the  interest  of  inhabitants,  nit-rely 
as  such,  has  been  deemed  too  remote  and 
contingent,  as  well  as  too  minute,  to  dis- 
qualify them,  and  they  have  been  held 
competent  at  common  law.  Eustis  v. 
Parker,  1  N.  H.  273;  Cornwell  v.  Isham, 
1  Day,  35;  EuUer  v.  Ilamptou,  5  Conn. 


416;  Falls  v.  Belknap,  1  Johns.  486; 
Bloodgood  V.  Jamaica,  12  Johns.  284 ; 
Ex  parte  Kip,  1  Paige,  613;  Corwein  r. 
Hames,  11  Johns.  76;  Orange  v.  Spring- 
field, 1  Southard,  18«  ;  State  r.  Davidson, 

1  Bayley,  36 ;  Jonesboroiigh  v.   McKee, 

2  Yerger,  167;  Gass  v.  Gass,  3  Humph. 
278,  285.  See  infra,  §  331.  [The  doc- 
trine of  the  text  is  tiius  strenuously  con- 
troverted by  Judge  Redfield.  "  We  be- 
lieve the  practice  is  not  general,  in 
the  American  States,  to  admit  the  dec- 
larations of  the  members  of  a  corpora- 
tion, as  evidence  against  the  corporation 
itself.  And  it  seems  to  us,  tliat  upon 
principle  they  are  clearly  inadmissible. 
There  is  no  rule  of  law  better  settled  than 
that  the  admissions  of  a  shareholder  will 
not  bind  the  corporation.  Nor  will  the 
admission  of  a  director  or  agent  of  a  pri- 
vate corporation  bind  tiie  company,  e.x- 
cept  as  a  part  of  the  res  (jeaUv.  And  it 
will  make  no  difference  that  the  action 
is  in  the  corporate  name  of  the  pnrsident 
and  directors ;  that  does  not  make  them 
parties  in  person.  And  we  see  no  more 
reason  why  the  admissions  of  the  inhabi- 
tants of  a  town  or  parish  should  bind  the 
municipality,  because  the  action  happens 
to  1)6  in  form,  in  the  name  of  such  inhab- 
itants, than  tliat  all  the  admissions  or 
declarations  of  the  people  at  large  should 
be  evidence  against  the  public  ])rosecutor 
in  criminal  proceedings,  when  they  are 
instituted  in  the   name  of   The  People, 


CHAP.  XI.]  OF  ADjnSSIONS.  215 

§  176.  Mere  community  of  interest  not  enough.  It  is  a  joint 
interest,  and  not  a  mere  commnnity  of  interest,  that  renders  such 
admissions  receivable.  Therefore  the  admissions  of  one  executor 
are  not  received,  to  take  a  case  out  of  the  statute  of  limitations, 
as  against  his  coexecutor.^  Nor  is  an  acknowledgment  of  in- 
debtment  by  one  executor  admissible  against  his  coexecutor, 
to  establish  the  original  demand.^  The  admission  of  the  receipt 
of  money,  by  one  of  several  trustees,  is  not  received  to  charge 
the  other  trustees.^  Nor  is  there  such  joint  interest  between  a 
surviving  promisor,  and  the  executor  of  his  copromisor,  as  to 
make  the  act  or  admission  of  the  one  sufficient  to  bind  the  other.'* 
Neither  will  the  admission  of  one  who  was  joint  j)romisor  with  a 
feme  sole  be  received  to  charge  her  husband,  after  the  marriage, 
in  an  action  against  them  all,  upon  a  plea  of  the  statute  of  limi- 
tations.'^ For  the  same  reason,  namely,  the  absence  of  a  joint 
interest,  the  admissions  of  one  tenant  in  common  are  not  receiva- 
ble against  his  cotenant,  though  both  are  parties  on  the  same 
side  in  the  suit.^  Nor  are  the  admissions  of  one  of  several 
devisees  or  legatees  admissible  to  impeach  the  validity  of  the  will 
where  they  may  affect  others  not  in  privity  with  him.'  Neither 
are  the  admissions  of  one  defendant  evidence  against  the  other, 
in  an  action  on  the  case  for  the  mere  negligence  of  both.^ 

§  177.  Interest  must  be  real.  It  is  obvious  that  an  appare)7t 
joiyit  interest  is  not  sufficient  to  render  the  admissions  of  one 
party  receivable  against  his  companions  where  the  reality  of  that 

which  we  believe  would  be  regarded  as  &    Rawl.   75;    Hathaway  v.   Haskell,  9 

an  absurdity,  by  every   one.     We  con-  Pick.  42. 

elude,  therefore,  that  in  no  such  case  can  ^  Pittnam  v.  Foster  et  al.,  1  B.  &  C. 

the  admission  or  declaration  of  a  corpo-  248. 

rator    be    fairly   regarded    as    evidence  "^  Dan  et  al.  v.  Brown  et  al.,  4  Cowen, 

against  the  corporation.     Watertown  i'.  483,  492.     And  see  Smith  v.  Vincent,  15 

Cowen,  4  Paige,  510 ;  Burlington  v.  Cal-  Conn.  1. 

ais,  1  Vt.  385  ;   Low  v.  Perkins,  10  Vt.  ^  Hauberger  v.  Root,  6  Watts  &  Serg. 

532.]  431. 

1  Tullock  y.  Dunn,  R.&M.  410.  Qita;re,  8  Daniels  v.  Potter,  1   M.  &  M.  501; 

and  see  Hamraon  v.  Huntley,  4  Cowen,  snpra,^  111.    Neither  is  there  such  privity 

49;5.     But  the  declarations  of  an  executor  among  the  members  of  a  board  of  public 

or  a  Iministrator  are  admissible  against  officers,  as  to  make  the  admissions  of  one 

him,  in  any  suit   by  or  against  him  in  binding  on  all.    Lockwood  v.  Smith  et  al., 

that  character.    Faunce  w.  Gray,  21  Pick.  6  Day,  309.    Nor  among  several  indorsers 

243.  of    a    promissory    note,     olaymaker    ;;. 

^  Hammon  v.  Huntley,  4  Cowen,  49.3;  Gundacker's  Ex'r,  10  Serg.  &  Eawl.   75. 

James  i-.   Hackley,  16  Johns.  277;  For-  Nor    between    executors    and    heirs    or 

syth  V.  Ganson,  5  Wend.  558.  devisees.     Osgood   v.   Manhattan  Co.,  3 

8  Davies  v.  Ridge  et  al.,  3  Esp.  101.  Cowen,  611.     [Tlie  same  rule  applies  to 

*  Atkins  V.  Tredgold  et  al.,  2  B.  &  C.  the   admissions   of    codefcndants   in   ac- 

23;  Slater  v.  Lawson,  1  B.  &  Ad.  396;  tions   of    trover.     Edgerton   v.   Wolf,   6 

Slaymaker  v.  Gundacker's  Ex'r,  10  Serg.  Gray,  453.] 


216  LAW   OF  EVIDEXCE.  [PAJJT  H. 

interest  is  tJie  point  in  controversy.  A  foundation  must  first  be 
laid,  by  showing,  j)rima  facie,  that  a  joint  interest  exists.  There- 
fore, in  an  action  against  several  joint  makers  of  a  promissory 
note,  the  execution  of  which  was  the  point  in  issue,  the  admis- 
sion of  his  signature  only  by  one  defendant  was  held  not  suffi- 
cient to  entitle  the  plaintiff  to  recover  against  him  and  the  others, 
though  theirs  had  been  proved  ;  the  point  to  be  proved  against 
all  being  a  joint  promise  by  all.i  And  where  it  is  sought  to 
charge  several  as  partners,  an  admission  of  the  fact  of  partnership 
by  one  is  not  receivable  in  evidence  against  any  of  the  others,  to 
prove  the  partnersliip.  It  is  only  after  the  partnership  is  shown 
to  exist,  by  proof  satisfactory  to  the  judge,  that  the  admission  of 
one  of  the  parties  is  received,  in  order  to  affect  the  others.^  If 
they  sue  upon  a  promise  to  them  as  partners,  the  admission  of 
one  is  evidence  against  all,  even  though  it  goes  to  a  denial  of  the 
joint  right  of  action,  the  partnership  being  conclusively  admitted 
by  the  form  of  action .^ 

§  178.  Answers  in  chancery.  In  general,  the  ansiver  of  one 
defendant  in  chancery  cannot  be  read  in  evidence  against  his  co- 
defendant  ;  the  reason  being,  that,  as  there  is  no  issue  between 
them,  there  can  have  been  no  opportunity  for  cross-examination,^ 
But  this  rule  does  not  apply  to  cases  where  the  other  defendant 
claims  through  him  whose  answer  is  offered  in  evidence  ;  nor  to 
cases  where  they  have  a  joint  interest,  either  as  partners  or  other- 
wise, in  the  transaction.^  Wherever  the  confession  of  any  party 
would  be  good  evidence  against  another,  in  such  case  liis  answer, 
a  fortiori,  may  be  read  against  the  latter.^ 

§  179.  Guardians,    executors,   &c.      The  admissions  which   are 

1  Gray   v.  Palmer  et  ah,  1   Esp.  135         *  Jones    v.    Tuberville,    2    Ves.    11 ; 

[Boswell  V.  Blackman,  12  Geo.  501].  Morse  v.  Royall,  12  Ves.  355,  360;  Leeds 

-  Nichols  V.  Doweling  et  nl.,  1   Stark,  v.   The  Marine  Ins.  Co.   of  Alexandria, 

81  ;  Grant  v.  Jackson  <ft  «/.,Peake's  Gas.  2  Wheat.  380;  Gresley  on  Eq.  Evid.  24  ; 

204  ;  Bur{iess  J.'.  Lane  €<  «/.,  3  Greenl.  165 ;  Field   v.  Holland,  6   Cranch,  8;  Clark's 

(iraft.in  Bank    v.   Moore,  13   N.   IT.  90.  Ex'rs  n.  Van  Keimsdyk,  9  Cranch,  l-'):]; 

See  s"/'r<7,  §  112  ;  7»o.s^  vol.  ii.  §  484;  La-  Van    Keimsdyk   v.   Kane,    1    Gall.   OoO; 

thaii  V.  Ke'nniston,  18  N.  H.  203;  Whit-  Parker  v.  Morrell,  12  Jur.  253;  2  C.  & 

ney    v.   Ferris,    10   Johns.   06;  Wood   v.  K.  609;  Morris  v.  Nixon,  1  How.  S.  C. 

Braddick,  1  Taunt.  104  ;  Sangster  v.  Maz-  48. 

zaredo  f< '//.,  1  Stark.  161 ;  Van  Reimsdyk  8  Field  v.  Holland,  G  Cranch,  8,24; 

V.   Kane,  1   Gall.  635;  Harris  y.^Viison,  Clark's  Kx'rs  c.  Van  Hchnsdyk,  0  Cranch, 

7  Wend.  57;    Biickman    v.  Barnum,   15  153,156;  Osborn  ?•.  United  States  Bank, 

Conn.  68  [Allcott  r.  Strong,  9  Cash.  323;  9  Wheat.  738,  832;  Christie  v.  Bishop,  1 

Dutton    V.    Woodman,   Id.   255;  Bich  i;.  Barb.  Ch.  105,  116. 
Flanders,  30  N.  II.  :5)4].  »  Van  Reimsdyk  v.  Kane,  1  Gall.  630, 

3  Lucas  et  al.  v.  De  La  Cour,  1  ]M.  &  S.  635. 
219. 


CHAP.  XI.]  OF  AD:\nSSIONS.  217 

thus  receivable  in  evidence  must,  as  we  have  seen,  be  those  of  a 
person  having  at  the  time  some  interest  in  the  matter  afterwards 
in  controversy  in  the  suit  to  which  he  is  a  party.  The  admis- 
sions, therefore,  of  a  guardian,  or  of  an  executor  or  administrator, 
made  before  he  was  completely  clothed  with  that  trust,  or  of  a 
prochein  amy,  made  before  the  commencement  of  the  suit,  cannot 
be  received,  either  against  the  ward  or  infant  in  the  one  case,  or 
against  himself,  as  the  representative  of  heirs,  devisees,  and 
creditors,  in  the  other ;  ^  though  it  may  bind  the  person  liimself, 
when  he  is  afterwards  a  party,  suo  jure,  in  another  action.  A 
solemn  admission,  however,  made  in  good  faith,  in  a  pending 
suit,  for  the  purpose  of  that  trial  only,  is  governed  by  other  con- 
siderations. Thus,  the  plea  of  nolo  contendere,  in  a  criminal  case, 
is  an  admission  for  that  trial  only.  One  object  of  it  is  to  prevent 
the  proceedings  being  used  in  any  other  place  ;  and  therefore  it 
is  held  inadmissible  in  a  civil  action  against  the  same  party .^  So, 
the  answer  of  the  guardian  of  an  infant  defendant  in  chancery 
can  never  be  read  against  the  infant  in  another  suit ;  for  its  office 
was  only  to  bring  the  infant  into  court  and  make  him  a  party .^ 
But  it  may  be  used  against  the  guardian,  when  he  afterwards  is 
a  party  in  his  private  capacity ;  for  it  is  his  own  admission  upon ' 
oath.'^  Neither  can  the  admission  of  a  married  woman,  answering 
jointly  with  her  husband,  be  afterwards  read  against  her,  it  being 
considered  as  the  answer  of  the  husband  alone. ^ 

§  180.  Admissions  of    parties  not  of  record.       We    are    next   to 
consider  the  admissions  of  persons  who  are  not  parties  to  the 

1  Webb  V.  Smith,  R.  &  M.  106 ;  Eraser  own,  are  admissible  against  the  plaintiff, 

V.  Marsh,  2  Stark.  41 ;  Cowling  v.  Ely,  Id.  as  being  the  declarations  of  a  party  to 

3136  ;  Plant  z^.^cEwen,  4  Conn.  544.     So,  tlie  record.     Tenney  v.  Evans,  14  N.  H 

the  admissions  of  one,  before  he  became  34-3  [post,  §  180,  n.l. 
assignee  of  a  bankrupt,  are  not  receivable  •^  Guild  v.  Lee,  3  Law  Reporter,  p.  433 

against   him,    where   suing   as   assignee.  So,  an  admission  in  one  plea  cannot  be 

Fenwick  v.    Thornton,    1    M.    &    M.   51  called   in  aid   of  the   issue   in   another 

[Legge  V.  Edmonds,  25   L.  J.  Ch.  125  ;  Stracey  v.  Blake,  3  C.  M.  &  R.  168 ;  Jones 

Metiers  v.  Brown,  32  L.  J.  Ex.  140.    The  v.  Flint,  2  P.  &  D.  594 ;  Gould  on  Plead 

ruling  to  the  contrary  by  Tyndal,  C.  J.,  ing,  432,  433;  Mr.  Hand's  note  to  Jack 

in  Smith  v.  Morgan,  2  M.  &  Rob.,  seems  son  v.  Stetson,  15  Mass.  58. 
to  be  regarded  as  unsound  in  England].  8  Eggleston   v.   Speke,   alias  Petit, 

Nor  is  the  statement  of  one  partner  ad-  Mod.  258,  259;  Hawkins  v.  Luscombe,  2 

missible  against  the  others,  in  regard  to  Swanst.   392,   cases   cited   in    note    ( 

matters  which  were  transacted  before  he  Story  on  Eq.  PI.  668 ;  Gresley  on   Eq. 

became  a  partner  in  the  house,  and  in  Evid.  24,  323;  Mills  v.  Dennis,  3  Johns 

which  he  had  no  interest  prior  to  that  Ch.  367. 

time.     Catt  v.  Howard,  3  Stark.  3.     In  4  Beasly  v.  Magrath.  2  Sch.  &  Lefr, 

trover  by  an  infant  siiingby  his  guardian,  34;  Gresley  on  Eq.  Evid.  323. 
the  statements  of  the  guardian,  tending  ^  Hodgson   v.   Merest,   9   Price,   563; 

to  show  that  the  property  was  in  fact  his  Elstou  v.  Wood,  2  My.  &  K.  678. 


218 


LAW   OF  EVIDENCE. 


[PAUT  n. 


record,  but  yet  are  interested  in  the  sulject-matter  of  tlie  suit. 
The  law,  in  regard  to  this  source  of  evidence,  looks  chiefly  to 
the  real  parties  in  interest,  and  gives  to  their  admissions  the 
same  weight  as  though  they  were  parties  to  the  record.  Thus 
the  admissions  of  the  cestui  que  trust  of  a  bond ;  ^  those  of  the 
persons  interested  in  a  policy  effected  in  another's  name,  for 
their  benefit ;  ^  those  of  the  ship-owners,  in  an  action  by  the 
master  for  freight ;  ^  those  of  the  indemnifying  creditor,  in  an 
action  against  the  sheriff ;  *  those  of  the  deputy-sheriff,  in  an 
action  against  the  high-sheriff  for  the  misconduct  of  the  deputy  ;  ^ 
are  all  receivable  against  the  party  making  them.  And,  in 
general,  the  admissions  of  any  party  represented  by  another  are 
receivable  in  evidence  against  his  representative.^     But  here, 


1  Hanson  v.  Parker,  1  Wils.  257.  See 
also  Harrison  f.  Vallance,  1  Bing.  45.  But 
the  declarations  of  tlie  cestui  que  trust  are 
admissible,  only  so  far  as  his  interest  and 
that  of  the  trustee  are  identical.  Doe  i'. 
Wainwright,  3  Nev.  &  P.  598.  And  the 
nature  of  liis  interest  must  be  shown,  even 
though  it  be  admitted  that  he  is  a  cestui 
que  trust.  May  v.  Taylor,  6  M.  &  Gr.  261. 
[Tlie  admissions  of  a  silent  partner,  not  a 
party  to  record,  may  be  given  in  evidence. 
Weed  V.  Kellogg,  6  McLean,  44.  But 
the  admissions  ot  one  of  several  cestuis  que 
trust  of  real  estate  are  not  admissible  to 
defeat  the  title  of  the  trustee.  Pope  v. 
Devereux,  5  Gray,  40!>.] 

2  Bell  V.  Ansley,  16  East.  141,  143. 

3  Smith  V.  Lyon,  3  Campb.  465. 

*  Dovvdon  V.  Powle,  4  Campb.  38 ; 
Dyke  v.  Aldridge,  cited  7  T.  R.  665;  11 
East,  584;  Young  v.  Smith,  6  Esp.  121; 
Harwood  v.  Keyes,  1  M.  &  Rob.  204; 
Proctor  V.  Lainson,  7  C.  &  P.  629. 

*  The  admissions  of  an  under-sheriff 
are  not  receivable  in  evidence  against  the 
sheriff",  unless  they  tend  to  charge  himself, 
he  being  the  real  party  in  the  cause.  He 
is  not  regarded  as  the  general  officer  of 
tlie  slierilT,  to  all  intents.  Snowball  v. 
Goodricke,  4  B.  &  Ad.  541 ;  tiiough  the 
admissibility  of  his  declarations  has  some- 
times been  placed  on  that  ground.  Drake 
17.  Sykes,  7  T.  R.  113.  At  otiier  times 
they  have  been  received  on  tlie  ground, 
tliat,  being  liable  over  to  the  sheriff,  lie  is 
the  real  parly  to  the  suit.  Yaljsley  v. 
Doble,  1  Ld.  Uaym.  100.  And  wliere  the 
sheriff  has  taken  a  general  bond  of  indem- 
nity from  the  under-officer,  and  lias  given 
hiin  notice  of  tlie  pendency  of  the  suit, 
and  required  liiiu  to  defend  it,  the  latter  is 
in  fact  the  real  ])arty  in  interest,  whenever 
the  sheriff  is  sued  for  his  default;  and  his 


admissions  are  clearly  receivable,  on  prin- 
ciple, when  made  against  liimself.  It  has 
elsewhere  been  said,  that  the  declarations 
of  an  under-sheriff  are  evidence  to  charge 
the  sheriff,  only  where  his  acts  might  be 
given  in  evidence  to  charge  liim;  and 
then,  rather  as  acts  than  as  declarations, 
the  declarations  being  considered  as  part 
of  the  les  qestte.  Wheeler  v.  Ilambriglit, 
9  Scrg.  &  R.  396,  397.  See  Scott  v.  Mar- 
shall, 2  Cr.  &  Jer.  238 ;  Jacobs  v.  Hum- 
phrey, 2  Cr.  &  Mees.  413;  s.  c.  2  Tyrw. 
272.  But  whenever  a  person  is  bound  by 
the  record,  he  is,  for  all  pur])Oses  of  evi- 
dence, the  party  in  interest,  and,  as  such, 
his  admissions  are  receivable  against  him, 
both  of  the  facts  it  recites,  and  of  the 
amount  of  damages,  in  all  cases  where, 
being  liable  over  to  the  nominal  defend- 
ant, he  has  been  notified  of  the  suit,  and 
required  to  defend  it.  Clark's  E.x'rs  v. 
Carrington,  7  Cranch,  822;  Hamilton  r. 
Cutts,  4  Mass.  349;  Tyler  v.  Ulmer,  12 
Mass.  106 :  Duffield  r.  Scott.  3  T.  R.  374 ; 
Kip  1'.  Brigham,  6  Jones,  158  ;  7  Johns. 
108;  Bender  v.  Fromberger,  4  Dall.  436. 
See  also  Carlisle  v.  Garland,  7  Bing.  298; 
North  r.  Miles,  1  Campb.  389;  Howslier 
V.  Calley,  1  Campb.  391,  n. ;  Underhill  v. 
Wilson,  0  Bing.  097  ;  Bond  v.  Ward,  I 
Nott  &  McCord,  201;  Carmack  v.  The 
Commonwealth,  5  Binn.  184;  Sloman  v. 
Heme,  2  Esp.  G95;  Williams  v.  Bridges, 
2  Stark.  42;  Savage  r.  Balcli,  8  Grc^'ul. 
27.  [The  admissions  of  a  party  named 
as  an  executor  and  legatee  of  a  will,  as 
to  the  unsoundness  of  the  mind  of  the 
testator,  are  admissible,  U])on  a  probate 
of  the  will.  Robinson  v.  Hutchinson,  31 
Vt.  44.3.] 

e  Stark.  Evid.  20;  North  v.  Miles,  1 
Campb.  390.  [In  an  action  by  a  father 
for  the  loss  of  the  life  of  the  son,  the  dec- 


CHAP.  XI.]  OF  AD^nSSIONS.  219 

also,  it  is  to  Ije  observed,  that  the  declarations  or  admissions 
must  have  been  made  while  the  party  making  them  had  some 
interest  in  the  matter ;  and  they  are  receivable  in  evidence  only 
so  far  as  his  own  interests  are  concerned.  Thus,  the  declaration 
of  a  bankrupt,  made  before  his  bankruptcy,  is  good  evidence  to 
charge  his  estate  with  a  debt ;  but  not  so  if  it  was  made  after- 
wards.^ While  the  declarant  is  the  only  party  in  interest,  no 
harm  can  possibly  result  from  giving  full  effect  to  his  admissions. 
He  may  be  supposed  best  to  know  the  extent  of  his  own  lights, 
and  to  be  least  of  all  disposed  to  concede  away  any  that  actually 
belonged  to  him.  But  an  admission,  made  after  other  persons 
liave  acquired  separate  rights  in  the  same  subject-matter,  cannot 
be  received  to  disparage  their  title,  however  it  may  affect  that  of 
the  declarant  himself.  This  most  just  and  equitable  doctrine 
will  be  found  to  apply  not  only  to  admissions  made  by  bankrupts 
and  insolvents,  but  to  the  case  of  vendor  and  vendee,  payee  and 
indorsee,  grantor  and  grantee,  and,  generally,  to  be  the  pervading 
doctrine  in  all  cases  of  rights  acquired  in  good  faith,  previous  to 
the  time  of  making  the  admissions  in  question.^ 

§  181.  Admissions  of  strangers.  In  some  cases,  the  admissions 
of  third  persons^  strangers  to  the  suit,  are  receivable.  This  arises 
when  the  issue  is  substantially  upon  the  mutual  rights  of  such 
persons  at  a  particular  time  ;  in  which  case  the  practice  is  to  let 
in  such  evidence  in  general,  as  would  be  legally  admissible  in  an 
action  between  the  parties  themselves.  Thus,  in  an  action  against 
the  sheriff  for  an  escape,  the  dfibtor's  acknowledgment  of  the 
debt,  being  sufficient  to  charge  him  in  the  original  action,  is 
sufficient,  as  against  the  sheriff,  to  slipport  the  averment  in  the 
declaration  that  the  party  escaping  was  so  indebted.^  So,  an 
admission  of  joint  liability  by  a  tliird  person  has  been  held  suffi- 
cient evidence,  on  the  part  of  the  defendant,  to  support  a  plea  in 
abatement  for  the  non-joinder  of  such  person  as  defendant  in  the 
suit ;  it  being  admissible  in  an  action  against  him  for  the  same 

lavations  of  the  son  after  the  injury  as  to  Eggleston,  14  Mass.  245,  250,  251 ;  Phe- 

the   cause   are    admissible    against    the  nix  y.  Ingraliam,  5  Johns.  412 ;  Packer  w. 

father.    Stern  v.  R.  R.  Co.,  C.  C.  P.  Phila.  Gonsalus,  1   Serg.  &   R.  526 ;  Patton  v, 

7  Leg.  Gazette,  223.]  Goldsborough,   9   Serg.   &   R.  47 ;  Bahb 

1  Bateman  v.  Bailey,  5  T.  R.  513;  v.  Clemson,  12  Serg.  &  R.  328  [uifra, 
Smith  V.  Simmes,  1  Esp.  330;  Deady  v.  §  190J. 

Harrison,  1  Stark.  60  [infra,  §  190].  3  Sloman  v.  Heme,  2  Esp.  695;  Wil- 

2  Bartlett  v.  Delprat,  4  Mass.  702,  708 ;  lianis  v.  Bridges,  2  Stark.  42;  Kempland 
Clarke  v.  Waite,  12  Mass.  439 ;  Bridge  v.     v.  Macauley,  Peake's  Cas.  65. 


220  LAW   OF  EVIDENCE.  [PABT  H. 

caiise.^  And  the  admissions  of  a  bankrupt,  made  before  the  act 
of  bankruptcy,  are  receivable  in  proof  of  the  petitioning  creditor's 
debt.  His  declarations,  made  after  the  act  of  bankruptcy,  though 
admissible  against  himself,  form  an  exception  to  this  rule,  because 
of  the  intervening  rights  of  creditors,  and  the  danger  of  fraud.^ 
-  §  182.  Referees.  The  admissions  of  a  third  person  are  also 
receivable  in  evidence,  against  the  party  who  has  expressly  re- 
ferred another  to  him  for  information,  in  regard  to  an  uncertain 
or  disputed  matter.  In  such  cases,  the  party  is  bound  by  the 
declarations  of  the  person  referred  to,  in  the  same  manner,  and 
to  the  same  extent,  as  if  they  were  made  by  liimself.^  Thus, 
upon  a  plea  of  plene  administravit^  where  the  executors  wrote  to 
the  plaintiff,  that,  if  she  wished  for  further  information  in  regard 
to  the  assets,  she  should  apply  to  a  certain  merchant  in  the  city, 
they  were  held  bound  by  the  replies  of  the  merchant  to  her  in- 
quiries upon  that  subject.^  So,  in  assumpsit  for  goods  sold, 
where  the  fact  of  the  delivery  of  them  by  the  carman  was  dis- 
puted, and  the  defendant  said,  "  If  he  will  say  that  he  did  deliver 
the  goods,  I  will  pay  for  them,"  he  was  held  bound  by  the 
affirmative  reply  of  the  carman.^ 

§  183.  Interpreter.  Tliis  princijDle  extends  to  the  case  of  an 
interpreter  whose  statements  of  what  the  party  says  are  treated 
as  identical  with  those  of  the  party  himself ;  and  therefore  may 
be  proved  by  any  person  who  heard  them,  without  calling  the 
interpreter.^ 

1  Clay  V.  Langslow,  1   M.  &  M.  45.  collusion.     Chapel  v.  "Washburn,  11  Ind. 

Sed  qiuvre,  and  see  infra,  §  .395.  393.] 

'i  Hoare  v.  Cory  ton,  4  Taunt.  660;  2         »  [Turnery.  Yates,  16  How.  (U.  S.)  14  ; 

Rose,  158;  Robson  i;.  Kemp,  4  Esp.  2.34 ;  Chapman  v.   Twitchell,  37    Maine,   59; 

Watts  V.  Tliorpe,  1  Caiiipb.  376;  Small-  Cliadsey  v.  Greene,  24  Conn.  5G2.] 
combe  V.   Burtfes,   McClel.   45;  s.   c.   13  *  Williams  v.  Innes,  1  Canipb.  364. 

Price,  136 ;  Taylor  v.  Kinloch,  1  Stark.  ^  Daniel  v.  Pitt,  1    Campb.   306,  n. ; 

175;  '2  Stark.  5'J4;  Jarrett  >•.  Leonard,  2  s.  c.  6  Esp.  74;  Brock  v.  Kent,  Id.;  Burt 

M.  &  S.  265.     Tiie  dictum  of  Lord  Ken-  v.  Palmer,  5  Esp.  145 ;  Hood  r.  Reeve, 

yon,  in  Dowton  v.  Cross,  1  Esp.  168,  that  3  C.  &  P.  532.     [So  if  a  party  uses  the 

the  admissions  of  a  bankrupt,  made  after  affidavit  or  deposition  of  another  to  prove 

the  act  of   bankruptcy,  but   before   the  a  certain  fact,  lie  may  be  held  to  have 

commission  issued,  are  receivable,  is  con-  admitted  tiie  fact.     Brickell  v.  Hulse,  7 

tradicted  in  13  Price,  153,  1-54,  and  over-  A.  &  E.  454;  Gardner  i;.  Moult,  10  A.  & 

ruled  by  that  and  the  other  cases  above  E.  464.] 

cited.  See  also  Bernasconi  r.  Farebrotiier,  ^  Fabrigas  v.  Mostj'n,  11  St.  Tr.  171. 

3  B.  &.  Ad.  372.     [Tiie  evidence  of  the  [But  this  rule  does  not  apply  to  tlie  case 

principal   will    not    ciiarge    the    surety,  of  an  interpreter  of  a  witness  in  court, 

especially  after  the  transaction  is  termi-  He  is  not  the  agent  of  the  party  calling 

nated.     Chelmsford   Co.  v.  Demarest,  7  him,  but  rather  an  olHcer  of  court,  and 

Gray,  1.     But  the  admission  of  the  surety  liis  declarations  are  admis.-iibie  only  under 

ia  good  against  both  in  tiie  absence  of  the  conditions  stated  in  §  163.     Shearer 


CHAP.  XI.]  OF  ADI^nSSIONS.  221 

§  184.  Not  conclusive.  Whether  the  answer  of  a  person  thus 
referred  to  is  conclusive  against  the  party  does  not  seem  to  have 
been  settled.  Where  the  plaintiff  had  offered  to  rest  his  claim 
upon  the  defendant's  affidavit,  which  was  accordingly  taten,  Lord 
Kenyon  held,  that  he  was  conclusively  bound,  even  though  the 
affidavit  had  been  false ;  and  he  added,  that  to  make  such  a 
proposition  and  afterwards  to  recede  from  it  was  mala  fides  ;  bi;  t 
that,  besides  that,  it  might  be  turned  to  very  improper  purposes, 
such  as  to  entrap  the  witness,  or  to  find  out  how  far  the  party's 
evidence  would  go  in  support  of  his  case.^  But  in  a  later  case, 
where  the  question  was  upon  the  identity  of  a  horse,  in  the 
defendant's  possession,  with  one  lost  by  the  plaintiff,  and  the 
plaintiff  had  said,  that,  if  the  defendant  would  take  his  oath  that 
the  horse  was  his,  he  should  keep  him,  and  he  made  oath  accord- 
ingly, Lord  Tenterden  observed,  that,  considering  the  loose 
manner  in  which  the  evidence  had  been  given,  he  would  not 
receive  it  as  conclusive  ;  but  that  it  was  a  circumstance  on  which 
he  should  not  fail  to  remark  to  the  jury.^  And  certainly  the 
opinion  of  Lord  Tenterden,  indicated  by  what  fell  from  him  in 
this  case,  more  perfectly  harmonizes  with  other  parts  of  the  law, 
especially  as  it  is  opposed  to  any  further  extension  of  the  doc- 
trine of  estoppels,  which  sometimes  precludes  the  investigation 
of  truth.  The  purj)oses  of  justice  and  policy  are  sufficiently 
answered,  by  throwing  the  burden  of  proof  on  the  opposing 
party,  as  •  in  a  case  of  an  award,  and  holding  him  bound,  unless 
he  impeaches  the  test  referred  to  by  clear  proof  of  fraud  or  mis- 
take.^ 

§  185.  Admissions  of  wife.     The  admissions  of  the  wife  will  bind 
the  husband,  only  where  she  has  authority  to  make  them.*     This 

I'.  Harber,  36  Ind.  536.]     The  cases  of  tlie  parol  submissions,  and  therefore  conclu- 

reference  of  a  disputed  liability  to  tlie  sive,  unless  impeached  for  causes  recog- 

opinion  of   legal  counsel,  and  of  a  dis-  nized  in  the  law  of  awards, 

puted  fact  regarding  a  mine  to  a  miner's  ^  Stevens   v.    Thacker,   Peake's   Cas. 

jury,  have  been  treated  as  falling  under  187;  Lloyd  v.  Willan,  1  Esp.  178;  Deles- 

this  head;  the  decisions  being  held  bind-  line  v.  Greenland,  1  Bay, 458,  ace, where 

ing  as  the  answers  of  persons  referred  to.  the  oath  of  a  tliird  person  was  referred  to. 

How  far  the  circumstance,  that  if  treated  See  Reg.  i'.  Moreau,  36  Leg.  Obs.  61) ;  11 

as  awards,  being  in  writing,  they  would  Ad.  &  El.  1028,  as  to  the  admissibility  of 

have  been  void  for  want  of  a  stamp,  may  an  award  as  an  admission  of  the  party ; 

have  led  the  learned  judges  to  consider  infra,  §  537,  n.  (1). 

them  in  another  light,  does  not  appear.  ^  Garnett  i'.  Ball,  3  Stark.  160. 

Sybray  v.  White,  1  M.  &  W.  435  [Price  »  Whitehead  v.  Tattersall,!  Ad.  &  EI. 

V.  HoUis,  1  M.  &  S.  105 ;  Downs  v.  Cooper,  491. 

2  Q.  B.  256].     But  in  this  country,  where  *  Emerson   v.   Blonden,  1   Esp.  142; 

no  stamp  is  required,  they  would  more  Anderson   v.    Sanderson,  2    Stark.   204; 

naturally  be  regarded  as   awards   upon  Carey  v.  Adkins,  4  Campb.  92.     In  Wal- 


222  LAW   OF  EVIDENCE.  [PAET  H. 

authority  does  not  result,  by  mere  operation  of  law,  from  the 
relation  of  husband  and  wife;  but  is  a  question  of  fact,  to  be 
found  by  the  jury,  as  in  other  cases  of  agency ;  for  though  this 
relation  is  peculiar  in  its  circumstances,  from  its  close  intimacy 
and  its  very  nature,  yet  it  is  not  peculiar  in  its  principles.  As 
the  wife  is  seldom  expressly  constituted  the  agent  of  the  husband, 
the  cases  on  this  subject  are  almost  universally  those  of  implied 
authority,  turning  upon  the  degree  in  which  the  husband  per- 
mitted the  wife  to  participate,  either  in  the  transaction  of  his 
affairs  in  general,  or  in  the  particular  matter  in  question.  Where 
he  sues  for  her  wages,  the  fact  that  she  earned  them  does  not  author- 
ize her  to  bind  him  by  her  admissions  of  payment ;  ^  nor  can  her 
declarations  affect  him,  where  he  sues  with  her  in  her  right;  for 
in  these,  and  similar  cases,  the  right  is  his  own,  though  acquired 
through  her  instrumentality.''^  But  in  regard  to  the  inference  of 
her  agency  from  circumstances,  the  question  has  been  left  to  the 
jury  with  great  latitude,  both  as  to  the  fact  of  agency  and  the 
time  of  the  admissions.  Thus,  it  has  been  held  competent  for 
them  to  infer  authority  in  her  to  accept  a  notice  and  direction, 
in  regard  to  a  particular  transaction  in  her  husband's  trade,  from 
the  circumstance  of  her  being  seen  twice  in  his  counting-room, 
appearing  to  conduct  his  business  relating  to  that  transaction, 
and  once  giving  orders  to  the  foreman.^  And  in  an  action 
against  the  husband,  for  goods  furnished  to  the  wife,  while  in 
the  country,  where  she  was  occasionally  visited  by  him,  her  letter 
to  the  plaintiff,  admitting  the  debt,  and  apologizing  for  the  non- 
payment, though  written  several  years  after  the  transaction,  was 
held  by  Lord  Ellenborough  sufficient  to  take  the  case  out  of  the 
statute  of  limitations.* 

ton  V.  Green,  1  C.  &  P.  G'21,  which  was  an         2  Alban  v.  Pritchet,6  T.  R.  680 ;  Kelley 

action  for  necessaries   funiislied  to  tiie  r.  Small,  2  Esp.  716;  Denn  v.   White,  7 

wife,  til?   defence   beinir   that   she    was  T.  K.  112,  as  to  her  admission  of  a  tres- 

turncd  oat  of  doors  for  adultery,  the  hus-  pass;  IIod<,rkinson  i\  Fletcher,  4  Campb. 

band  wai  permitted  to  prove  her  confes-  70.     Neither  are   his   admissions,   as    to 

eions  of  the  fact,  just   previous   to   his  facts  respecting  her  property,  which  hap- 

turning  her  away  ;  but  this  was  contem-  pened   before   the   marriage,   receivable 

porary  with  the  transaction  of  which  it  after  his  death,  to  affect  the  rights  of  the 

formed  a  part.  surviving   wife.     Smitli  v.    Scudder,   11 

1  Hall  V.  Hill,  2   Str.   1094.     An   au-  aerg.  &  R.  32.3. 
tiiority  to  the  wife  to  conduct  the  ordinary  *  IMimmer  r.  Sells,  3  Nev.  &  M.  422. 

business  of   the  shop   in    her  husband's  And  see  Riley  v.  Suydam,  4  Barb.  S.  C. 

absence  does  not  authorize  lier  to  bind  222. 

him  by  an  ailmission,  in  regard  to   the  *  Gregorys.  Parker,  1   Campb.  394; 

tenancy  or  the  rent  of  the  shop.    Meredith  Palethorp    v.    Furnish,    2    Esp.    511,   n. 

I'.   Footner,  11   M.  &  W.  202  [Jordan  v.  See  also  Clifford  v.  IJurton,  1  IJing.  199; 

Hubbard,  2G  Ala.  4331.  8.  c.  8  More,  16  ;   Petty  v.  Anderson,  3 


CHAP.  XI.]  OF  ADinSSIONS.  223 

§  186.  Attorneys  of  record.  The  admissions  of  attorneys  of 
record  bind  their  clients,  in  all  matters  relating  to  the  progress 
and  trial  of  the  cause.  But,  to  this  end,  they  must  be  distinct 
and  formal,  or  such  as  are  termed  solemn  admissions,  made  for 
the  express  purpose  of  alleviating  the  stringency  of  some  rule  of 
practice,  or  of  dispensing  with  the  formal  proof  of  some  fact  at 
the  trial.  In  such  cases,  they  are  in  general  conclusive ;  and 
may  be  given  in  evidence,  even  upon  a  new  trial. ^  But  other 
admissions,  which  are  mere  matters  of  conversation  with  an  attor- 
ney, though  they  relate  to  the  facts  in  controversy,  cannot  be 
received  in  evidence  against  his  client.  The  reason  of  the  dis- 
tinction is  found  in  the  nature  and  extent  of  the  authority  given ; 
the  attorney  being  constituted  for  the  management  of  the  cause 
in  court,  and  for  nothing  more.^  If  the  admission  is  made  before 
suit,  it  is  equally  binding,  provided  it  appear  that  the  attorney 
was  already  retained  to  appear  in  the  cause.^  But  in  the  absence 
of  any  evidence  of  retainer  at  that  time  in  the  cause,  there  must 
be  some  other  proof  of  authority  to  make  the  admission.*  Where 
the  attorney  is  already  constituted  in  the  cause,  admissions  made 
by  his  managing  clerk  or  his  agent  are  received  as  his  own.^ 

§  187.  Principal  as  against  surety.  We  are  next  to  consider 
the  admissions  of  a  principal^  as  evidence  in  an  action  against  the 
surety^  upon  his  collateral  undertaking.  In  the  cases  on  tliis 
subject  the  main  inquiry  has  been,  whether  the  declarations  of 
the  principal  were  made  during  the  transaction  of  the  business  for 
which  the  surety  was  bound,  so  as  to  become  part  of  the  res 
gestce.  If  so,  they  have  been  held  admissible ;  otherwise  not. 
The  surety  is  considered  as  bound  only  for  the  actual  conduct  of 
the  part}'-,  and  not  for  whatever  he  might  say  he  had  done  ;  and 

Bing.  170  ;  Cotes  v.  Davis,  1  Campb.  485.  C.  &  K.  216  ;  Watson  v.  King,  3  M.  G.  & 

[As   to   admissions   of    wife   in   divorce  Sc.  608. 

cases  for  adultery,  see  post,  vol.  ii.  §  40.]  ^  Marshall  v.  Cliff,  4  Campb.  133. 

1  Doe  V.  Bird"  7  C.  &  P.  6 ;  Langley  v.  <  Wagstaff  v.  Wilson,  4  B.  &  Ad,  .330. 

Lord  Oxford,  1 IM.  &  W.  .508.    [But  an  oral  5  Taylor  v.  Williams,  2  B.  &  Ad  845, 

admission  of  a  fact  by  the  attorney  during  856;  Standage   v.  Creighton,  5  C.  &  P. 

the  progress  of  the  trial  is  not  conclusive  400  ;  Taylor  r.  Forster,  2  C.  cSb  P.  195  ; 

upon  a  second  trial,  especially  if  notice  Griffiths  v.  Williams,  1  T.  R.  710;  Trus- 

of  witiidrawal  of  the  admission  be  given,  love  i'.  Burton,  9  Moore,  64.     As  to  the 

though  it  is  evidence.     Perry  v.  Simpson  extent  of  certain  admissions,  see  Holt  v. 

Manuf.  Co.,  40  Conn.  313.     But  see  Col-  Squire,  Ry.  &  M.  282  ;  Marshall  v.  Cliff, 

ledge  v.  Horn,  3  Bing.  110.]  4  Campb.  133.     The  admission  of  the  due 

-  Young  V.  Wright,  1  Campb.  139, 141 ;  execution  of  a  deed  does  not  preclude  the 

Perkins    v.    Hawkshaw,   2    Stark.    239;  party  from  taking  advantage  of  a  vari- 

Elton  V.  Larkins,  1  M.  &  Rob.  196 ;  Doe  ance.     Goldie  v.  Shuttleworth,  1  Campb. 

V.  Bird,  7  C.  &  P.  6 ;  Doe  v.  Richards,  2  70. 


224  LAW   OF  EVIDENCE.  [PAET  H. 

therefore  is  entitled  to  proof  of  his  conduct  by  original  evidence, 
where  it  can  be  had ;  excluding  all  declarations  of  the  principal, 
made  subsequent  to  the  act,  to  which  they  relate,  and  out  of  the 
course  of  his  official  duty.  Thus,  where  one  guaranteed  the  pay- 
ment for  such  goods  as  the  plaintiffs  should  send  to  another,  in 
the  way  of  their  trade,  it  was  held,  that  the  admissions  of  the 
principal  debtor,  that  he  had  received  goods,  made  after  the  time 
of  their  supposed  delivery,  were  not  receivable  in  evidence  against 
the  surety.^  So,  if  one  becomes  surety  in  a  bond,  conditioned 
for  the  faithful  conduct  of  another  as  clerk,  or  collector,  it  is  held, 
that,  in  an  action  on  the  bond  ag?iinst  the  surety,  confessions  of 
embezzlement,  made  by  the  principal  after  his  dismissal,  are  not 
admissible  in  evidence ;  ^  though,  with  regard  to  entries  made  in 
the  course  of  his  duty,  it  is  otherwise.^  A  judgment,  also,  ren- 
dered against  the  principal,  may  be  admitted  as  evidence  of  that 
fact,  in  an  action  against  the  surety.*  On  the  other  hand,  upon 
the  same  general  ground,  it  has  been  held,  that,  where  the  surety 
confides  to  the  principal  the  power  of  making  a  contract,  he  con- 
fides to  him  the  power  of  furnishing  evidence  of  the  contract ; 
and  that,  if  the  contract  is  made  by  parol,  subsequent  declara- 
tions of  the  principal  are  admissible  in  evidence,  though  not  con- 
clusive. Thus,  where  a  husband  and  wife  agreed,  by  articles,  to 
live  separate,  and  C,  as  trustee  and  surety  for  the  wife,  cove- 
nanted to  pay  the  husband  a  sum  of  money,  upon  his  delivering 
to  the  wife  a  carriage  and  horses  for  her  separate  use,  it  was 
held,  in  an  action  by  the  husl^and  for  the  money,  that  the  wife's 
admissions  of  the  receipt  by  her  of  the  carriage  and  horses  were 
admissible.^  So,  where  A  guaranteed  the  performance  of  any 
contract  that  B  might  make  with  C,  the  admissions  and  declara- 
tions of  B  were  held  admissible  against  A,  to  prove  the  contract.^ 
§  188.  Same  subject.  But  where  the  surety,  being  sued  for 
the  default  of  the  principal,  gives  him  notice  of  the  pendency  of 
the  suit,  and  requests  him  to  defend  it ;  if  judgment  goes  against 

1  Evnns  y.  Bcattie,  5  Esp.  20  ;  Bacon  Ycatcs,  128  ;  IIotclikissi'.Lyon,  2Blackf, 
r.  Clu'sncy,  1  Stark.  192;  Longenccker  222;  Sholbv  )-.  Tlie  Governor,  &c.,  Id. 
V.  Hyde,  (J  Binn.  1.  289 ;  Boall 'v.  Beck,  3  liar.  &  Mclkn.  212. 

2  Smith  V.  Wliittinpliam,  6  C.  &  P.  78.  »  Wliitnash  r.  George,  8  B.  &  C.  55(3 ; 
See  also  Goss  v.  Watlington,  3  B.  &  B.  Middleton  i'.  Melton,  10  B.  &  C.  317; 
132 ;  Cutler  v.  Newlin,  Manning's  Digest,  McGahey  v.  Alston,  2  M.  &  W.  213.  214. 
N.  P.  137,  per  Ilolroyd,  J.,  in  1819 ;  *  Drummond  v.  Prestman,  13  Wheat. 
Dawes  v.  Sliedd,  15  Mass.  0,  9  ;  Foxcroft  515. 

V.  Nevins,  4  Greenl.  72;  Hayes  v.  Seaver,  ^  Fenner  v.  Lewis,  10  .Johns.  ']8. 

7   Greenl.   237 ;   Kespublicu   v.  Davis,  3  ^  Meade  v.  McDowell,  6  Binn.  195. 


CHAP.  XI.]  OF  ad:sussions.  225 

the  surety,  the  record  is  conclusive  evidence  for  him,  in  a  subse- 
quent action  against  the  principal  for  indemnity ;  for  the  princi- 
pal has  thus  virtually  become  party  to  it.  It  would  seem,  therefore, 
that  in  such  case  the  declarations  of  the  principal,  as  we  have 
heretofore  seen,  become  admissible,  even  though  they  operate 
against  the  surety.^ 

§  189.  Privity.  The  admissions  of  one  person  are  also  evi- 
dence against  another,  in  respect  of  privity  between  them.  The 
term  privity  denotes  mutual  or  successive  relationship  to  the 
same  rights  of  property ;  and  privies  are  distributed  into  several 
classes,  according  to  the  manner  of  this  relationship.  Thus, 
there  are  privies  in  estate,  as  donor  and  donee,  lessor  and  lessee, 
and  joint-tenants ;  privies  in  blood,  as  heir  and  ancestor,  and 
coparceners  ;  privies  in  representation,  as  executors  and  testator, 
administrators  and  intestate  ;  privies  in  law,  where  the  law,  with- 
out privity  of  blood  or  estate,  casts  the  land  upon  another,  as  by 
escheat.  All  these  are  more  generally  classed  into  privies  in 
estate,  privies  in  blood,  and  privies  in  law.^  The  ground  upon 
which  admissions  bind  those  in  privity  with  the  party  making 
them  is,  that  they  are  identified  in  interest ;  and,  of  course,  the 
rule  extends  no  farther  than  this  identity.  The  cases  of  coparce- 
ners and  joint-tenants  are  assimilated  to  those  of  joint-promisors, 
partners,  and  others  having  a  joint  interest,  which  have  already 
been  considered.^  In  other  cases,  where  the  party,  by  his  admis- 
sions, has  qualified  his  own  right,  and  another  claims  to  succeed 
him  as  heir,  executor,  or  the  like,  he  succeeds  only  to  the  right, 
as  thus  qualified,  at  the  time  when  his  title  commenced ;  and  the 
admissions  are  receivable  in  evidence  against  the  representative, 
in  the  same  manner  as  they  would  liave  been  against  the  party 

1  See  supra,  §  180,  n.  (8),  and  cases  ger;  privity  in  estate  alone,  between  the 
tliere  cited.  [See  Powers  v.  Nash,  37  lessee  and  the  grantee  of  tlie  reversion ; 
Maine,  322.]  and  privity  in  both  estate  and  contract, 

2  Co.  Lit.  271  a ;  Carver  v.  Jackson,  4  as  between  lessor  and  lessee,  &c.  ;  but 
Peters,  1,83;  Wood's  Inst.  L.  L.  Eng.  these  are  foreign  from  our  present  pur- 
236;  Tonilin's  Law  Diet,  in  verb.  Priv-  pose.  See  Wail<er's  case,  3  Co.  23;  Bev- 
ies. But  the  admissions  of  executors  and  erley's  case,  4  Co.  123,  124;  supra,  §§  19, 
administrators  are  not  receivable  against  20,  23,  24.  [Declarations  by  a  former 
their  coexccutors  or  coadministrators,  owner  of  property  under  whom  the  party 
Elwood  V.  Deifendorf,  5  Barb.  S.  C.  398.  claims  title  are,  in  general,  evidence,  if 
Other  divisions  have  been  recognized  ;  made  during  the  existence  of  liis  title, 
namely,  privity  in  tenure  between  land-  Hay  ward  Rubber  Co.  r.  Duncklee,  .30  Vt. 
lord  and  tenant ;  privity  in  contract  alone,  29.  See  also  Wheeler  v.  McCorristen, 
or  tlie  relation  between  lessor  and  lessee,  24  111.  210 ;  Norton  v.  Kearney,  10  Wis. 
or  heir  and  tenant  in  dower,  or  by  the  443.] 

curtesy,  by  the  covenants  of  the  latter,  '  Supra,  §§  174,  180. 

after  he  has  assigned  his  term  to  a  stran- 
VOL.   I.  15 


226 


LAW   OF  EVIDENCE. 


[PABT  n. 


represented.  Thus,  the  declarations  of  the  ancestor,  that  he  held 
the  land  as  the  tenant  of  a  third  person,  are  admissible  to  show 
the  seisin  of  that  person,  in  an  action  brought  by  him  against  the 
heir  for  the  land.i  Thus,  also,  where  the  defendant  in  a  real 
action  relied  on  a  long  possession,  he  has  been  permitted,  in 
proof  of  the  adverse  character  of  the  possession,  to  give  in  evi- 
dence the  declarations  of  one  under  whom  the  plaintiff  claimed, 
that  he  had  sold  the  land  to  the  person  under  whom  the  defend- 
ant claimed.2  And  the  declarations  of  an  intestate  are  admissi- 
ble against  his  administrator,  or  any  other  claiming  in  his  right.^ 
The  declarations,  also,  of  the  former  occupant  of  a  messuage,  in 
respect  of  which  the  present  occupant  claimed  a  right  of  common, 
because  of  vicinage,  are  admissible  evidence  in  disparagement  of 
the  right,  they  being  made  during  his  occupancy ;  and,  on  the 
same  principle,  other  contemporaneous  declarations  of  occupiers 
have  been  admitted,  as  evidence  of  the  nature  and  extent  of  their 
title,  against  those  claiming  in  privity  of  estate.^  Any  admission 
by  a  landlord  in  a  prior  lease,  which  is  relative  to  the  matter  in 
issue,  and  concerns  the  estate,  has  also  been  held  admissible  in 
e\'idence  against  a  lessee  who  claims  by  a  subsequent  title. ^ 


1  Doe  V.  Pcttett,  5  B.  &  Ad.  223 ;  2 
Poth.  on  Obi.  by  Evans,  p.  254 ;  suiira, 
§§  108,  100,  and  cases  tbere  cited. 

2  Brattle  Street  Church  v.  Hubbard,  2 
Met.  303.  And  see  Podgett  v.  Lawrence, 
10  Paige,  170  ;  Dorsey  v.  I^orsey,  3  H.  & 
J.  410 ;  Clary  v.  Grimes,  12  G.  &  J.  31. 
[A  tenant  for  life  cannot  prejudice  the 
estate  by  his  admissions,  but  a  tenant 
in  tail  may.  Pendleton  v.  Booth,  1  Gill. 
45 ;  Taylor,  Ev.  §  687  a,  and  cases  there 
cited.] 

3  Smith  V.  Smith,  3  Bing.  N.  C.  29 ; 
Ivat  V.  Finch,  1  Taunt.  141. 

4  Walker  ;-.  Bromlstock,  1  Esp.  458; 
Doe  V.  Austin,  9  Bing.  41  ;  Davios  r. 
Pierce,  2  T.  li.  53 ;  Doe  v.  Rickarby,  5 
Esp.  4 ;  Doe  v.  Jones,  1  Campb.  307, 
Ancient  maps,  books  of  survey,  &c., 
thougli  mere  private  documents,  are  fre- 
quentl}^  admi.s.sibie  on  tlii.s  ground,  where 
there  is  a  jjrivity  in  estate  between  the 
former  ])roprietor,  under  whose  direction 
they  were  made,  and  tlie  present  claim- 
ant, against  whom  they  are  oHered.  Bull. 
N.  1*.  283 ;  Briguum  v.  .Jennings,  1  Ld. 
Raym.  734  [snpm,  §  145,  n.j.  So,  as 
to  receij)ts  for  rent.  l>y  a  furmer  grantor, 
under  wiiom  both  parties  claimed.  Doe 
V.  Seaton,  2  Ad.  &  101.  171. 

5  Crease  v.  Barrett,  1   Crompt.  Mees. 


&  R.  919,  932.  See  also  Doe  r.  Cole,  6 
C.  &  P.  359,  that  a  letter  written  by  a  for- 
mer vicar,  respecting  the  property  of  the 
vicarage,  is  evidence  against  his  successor, 
in  an  ejectment  for  tlie  same  property,  in 
right  of  his  vicarage.  The  receipts,  also, 
of  a  vicar's  lessee,  it  seems,  are  admissible 
against  the  vicar,  in  proof  of  a  modus,  by 
reason  of  tlie  privit\' between  them.  .Jones 
V.  Carrington,  1  C.  &  P.  329,  330,  n. ; 
Maddison  v.  Nuttal,  6  Bing.  226.  So,  the 
answer  of  a  former  rector.  De  Wlielp- 
dale  V.  Milburn,  5  Pri'ce,  485.  An  answer 
in  chancery  is  also  admi.vsible  in  evidence 
against  any  person  actually  claiming  un- 
der the  party  wiio  put  it  in;  and  it  has 
been  held  priuKi  Jiirie  evidence  against 
persons  general!}'  reputed  to  claim  under 
him,  at  least  so  far  as  to  call  upon  them  to 
show  another  title  from  a  stranger.  Farl 
of  Sussex  ?'.  Temple,  1  -lA.  Kavm.  310; 
Countess  of  D.-irtmoutli  v.  lioberts,  16 
East,  334,  339,  340.  So,  of  other  declara- 
tions of  the  former  party  in  possession, 
which  wotdd  have  been  good  against  him- 
self, and  were  made  while  he  was  in  pos- 
session. Jackson  v.  Bard,  4  Johns.  230, 
231;  Norton  r.  Pettibone,  7  Conn.  319; 
Weidman  r.  Kohr,  4  Serg.  &  R.  174;  su- 
pra, §§  2;'),  24.  [The  declarations  of  the 
intestate  are  evidence  against  his  admin- 


CHAP.  XI.] 


OF  ADisnssioisrs. 


227 


§  190.  Assignors  as  against  assignee.  The  same  principle  lloMs 
in  regard  to  admissions  made  hy  the  assignor  of  a  personal  con- 
tract or  chattel,  previous  to  the  assignment,  wliile  he  remained 
the  sole  proprietor,  and  where  the  assignee  must  recover  through 
the  title  of  the  assignor,  and  succeeds  only  to  that  title  as  it  stood 
at  the  time  of  its  transfer.  In  such  case,  he  is  bound  by  the  pre- 
vious admissions  of  the  assignor,  in  disparagement  of  his  own 
apparent  title.  But  this  is  true  onl}^  where  there  is  an  identity 
cf  interest  between  the  assignor  and  assignee  ;  and  such  iden- 
tity is  deemed  to  exist  not  only  where  the  latter  is  expressly  the 
mere  agent  and  representative  of  the  former,  but  also  where  the 
assignee  has  acquired  a  title  with  actual  notice  of  the  true  state 
of  that  of  the  assignor,  as  qualified  by  the  admissions  in  question, 
or  where  he  has  purchased  a  demand  already  stale,  or  otherwise 
infected  with  circumstances  of  suspicion.^  Thus,  the  declarations 
of  a  former  holder  of  a  promissory  note,  negotiated  before  it  was 
overdue,  showing  that  it  was  given  without  consideration,  though 
made  while  he  held  the  note,  are  not  admissible  against  the  in- 
dorsee ;  for,  as  was  subsequently  observed  by  Parke,  J.,  "  the 
right  of  a  person,  holding  by  a  good  title,  is  not  to  be  cut  down 
by  the  acknowledgment  of  a  former  holder  that  he  had  no  title."  ^ 


istrator,  as  a  privy  by  representation, 
■upon  the  question  of  having  made  a  dona- 
tio mortis  causa.  Smith  v.  Maine,  25  Barb. 
33.] 

^  Harrison  v.  Vallance,  1  Bing.  38; 
Bayley  on  Bills,  by  Pliillips  and  Sewall, 
pp.  502,  503,  and  notes  (2d  Am.  ed.)  ; 
Gibblehouse  v.  Strong,  3  Rawle,  487  ; 
Hatch  V.  Dennis,  1  Fairf.  244;  Snelgrove 
V.  Martin,  2  McCord,  241,  243.  '[The 
declarations  and  admissions  of  an  assignor 
of  personal  property,  as  a  patent-right, 
made  after  lie  has  parted  with  his  interest 
in  it,  are  inailmissible  either  to  show  a 
■want  of  title  in  him,  or  to  affect  the  qual- 
ity of  the  article,  or  to  impair  the  right  of 
the  purchaser  in  anv  respect.  Bv  Nelson, 
J.,  Many  v.  Jagger,  1  Blatchf.  C.  C. 
872,  376.] 

■^  Barough  v.  White,  4  B.  &  C.  325, 
explained  in  Woolwav  v.  Rowe,  1  Ad.  & 
3':i.  114,  110  [I'hillips"  V.  Cole,  10  A.  & 
E.  100] ;  Shaw  v.  Broom,  4  D.  &  R. 
730;  Smith  v.  De  Wruitz,  Ky.  &  M.  212; 
Beanchamp  v.  Parry,  1  B.  &  Ad.  89 ; 
Hackett  v.  Martin,  8  Greenl.  77  ;  Parker 
V.  Grout,  11  Mass.  157,  n. ;  Jones  v.  Win- 
ter, 13  Mass.  304 ;  Dunn  v.  Snell,  15  Mass. 
481;  Paige   v.    Cagwin,  7   Hill    (N.  Y.), 


361 .  In  Connecticut,  it  seems  to  have  been 
held  otherwise.  Johnson  ;;.  Blackman, 
11  Conn.  342;  Woodruff  v.  Westcott,  12 
Conn.  134.  So  in  Vermont.  Sargeant  v. 
Sargeant,  3  Waslib.  371.  [The  statements 
of  an  insolvent  debtor,  whether  made  be- 
fore or  after  a  sale  alleged  to  be  fraudu- 
lent, as  to  the  value  of  the  property  sold, 
and  of  his  other  property,  are  inadmissible 
against  his  assignee  in  insolvency,  to  show 
that  the  sale  was  in  good  faith  in  a  suit  by 
the  assignee  against  the  purchaser  of  said 
property  to  recover  its  value.  Heywood 
V.  Reed,  4  Gray,  574.  See  also  Jones  v. 
Church,  &c.,  21  Barb.  161.  As  a  general 
rule,  the  declarations  of  the  assignor  in 
the  case  of  an  alleged  fraudulent  sale  are 
not  admissible  evidence  against  the  as- 
signee, unless  made  before  the  assign- 
ment, and  with  a  view  to  show  its  pur- 
pose, so  as  to  form  part  of  the  res  pestxe. 
But  if  made  while  the  assignor  remained 
in  possession,  although  after  the  execution 
of  the  assignment,  they  are  held  competent 
to  characterize  the  transaction.  Adams 
V.  Davidson,  10  N.  Y.  Ct.  App.  309.  And 
where  acombination  between  the  assignor 
and  assignee  is  previously  established,  the 
declarations  of  the  assignor  will  be  evi- 


228 


LAW  OF  EVIDENCE. 


[PAET  II. 


But,  in  an  action  by  the  indorsee  of  a  bill  or  note  dishonored 
before  it  was  negotiated,  the  declarations  of  the  indorser,  made 
while  the  interest  was  in  him,  are  admissible  in  evidence  for  the 
defendant.^ 

§  191.  Mode  of  proof.  These  admissions  by  third  persons,  as 
they  derive  their  value  and  legal  force  fi'om  the  relation  of  the 
party  making  them  to  the  property  in  question,  and  are  taken  as 
parts  of  the  res  gestce,  may  be  proved  hy  any  competent  witness,  who 
heard  them,  without  calling  the  party  by  whom  they  were  made. 
The  question  is,  whether  he  made  the  admission,  and  not  merely 
whether  the  fact  is  as  he  admitted  it  to  be.  Its  truth,  where  the 
admission  is  not  conclusive  (and  it  seldom  is  so),  may  be  contro- 
verted by  other  testimony  :  even  by  calling  the  party  himself, 
when  competent ;  but  it  is  not  necessary  to  produce  him,  his  dec- 
larations, when  admissible  at  all,  being  admissible  as  original  evi- 
dence, and  not  as  hearsay.^ 

§  192.  Time  and  circumstance.  We  are  next  to  consider  the 
time  and  circumstances  of  the  admission.     And  here  it  is  to  be 


dence  against  the  assignee  to  the  fullest 
extent,  although  made  after  the  assign- 
ment. Cuyler  v.  McCartney,  33  Barb. 
165.] 

1  Bayley  on  Bills,  502,  503,  and  notes 
(2d  Am.  ed.  by  Phillips  &  Sewall) ;  Pocock 
t'.  Billings,  Ky.  &  M.  127.  See  also  Story 
on  Bills,  §  220;  Chitty  on  Bills,  650  (8th 
ed.);  Hatfh  v.  Dennis,  1  Fairf.  249; 
Shirley  c.  Todd,  9  Greenl.  83.  [In  a  suit 
against  the  maker  of  a  promissory  note 
by  one  who  took  it  when  overdue,  the 
declarations  of  a  prior  holder,  made  while 
he  held  tlie  note,  after  it  was  due,  are 
admissible  in  evidence  to  sliow  payment 
to  such  prior  holder,  or  any  riglit  of  set-off 
which  tlie  maker  had  against  him.  But 
Buch  dechirations,  made  by  sucli  holder 
before  lie  took  the  note,  are  inadinissil)le. 
So  sucli  declarations,  made  V\v  such  holder 
after  assigning  tlie  note  to  one  from  whom 
the  plaintiff  since  took  it,  are  inadmissible, 
unless  sucli  assignment  was  conditioned 
to  be  void  upon  the  payment  to  the  as- 
signor of  a  less  sum  than  the  amount  due 
on  the  note;  in  which  case  such  declara- 
tions are  admissible  in  evidence  for  the 
defendant  to  the  extent  of  the  interest 
remaining  in  such  prior  holder.  Bond  v. 
Fitzpatrick,  4  Gray,  89.  02;  Sylvester 
t'.  Crapo,  15  Pick.  02;  Fisher  v.  True,  38 
Maine,  534;  McLanathan  v.  Patten,  39 
Id.  142;  Scanmion  r.  Scammon,  83  N.  H. 
62,  68;   Griddle  v.  Griddle,  21   Mo.  6r2. 


See  Jcrmain  v.  Denniston,  6  N.  Y.  Ct. 
App.  270;  Booth  v.  Swezey,  8  Id.  276; 
Tousley  v.  Barry,  16  Id.  497.  The  prac- 
tice in  the  different  States,  in  regard  to 
admitting  the  declarations  of  the  owner  of 
a  chose  in  action,  while  holding  the  same, 
it  not  being  negotiable,  or,  if  so,  being  at 
the  time  overdue,  to  the  effect  that  tlie 
iame  had  been  paid,  or  is  otherwise  in- 
vahd,  and  this  as  against  a  subsequent 
bonajide  owner,  is  not  uniform.  See  Mil- 
ler V.  Bingham,  29  Vt.  82,  where  such 
declarations  were  held  admissible.  The 
eases  cited  above  from  New  York  show 
that  such  declarations  are  not  there  ad- 
missible. The  English  rule  seems  in 
favor  of  receiving  such  declarations,  as  to 
the  title  of  all  personalty.  Harrison  >: 
Vallance,  1  Bing.  45;  Shaw  v.  Broom,  4 
Dow.  &  Ry.  730  ;  Pocock  v.  Billing,  2 
Bing.  269.  But  see  Carpenter  v.  llollis- 
ter,  13  Vt.  552,  where  the  question  as  to 
real  estate  is  fully  discussed.  Where 
goods  are  claimed  by  virtue  of  a  pledge, 
declarations  in  disparagement  of  his  title 
made  by  the  pledgor,  before  he  made  the 
pledge,  are  admissible  without  calling  him 
as  a  witness.     Alger  v.  Andrews,  47  Vt. 

oou  1 

^  ^  Supra,  §§  101,  113,  114,  and  cases 
there  cited ;"  Clark  v.  llougham,  2  B.  & 
C.  149;  Mountstephen  v.  lirooke,  3  B. 
&  Aid.  141 ;  Woolway  v.  Howe,  1  Ad.  & 
El.  114;  Payson  v.  Good,  3  Kerr,  272. 


CHAP.  XI.] 


OF  AD]\nSSIONS. 


229 


observed  that  confidential  overtures  of  pacification,  and  any  other 
offers  or  propositions  betAveen  litigating  parties,  expressly  stated 
to  be  made  "vvitliout  prejudice,  are  excluded  on  grounds  of  public 
policy.^  For,  without  this  protective  rule,  it  would  often  be  diffi- 
cult to  take  any  step  towards  an  amicable  compromise  or  adjust- 
ment. A  disting;tion  is  taken  between  the  admission  of  particular 
facts  and  an  offer  of  a  sum  of  money  to  buy  peace.  For,  as  Lord 
Mansfield  observed,  it  must  be  permitted  to  men  to  buy  their 
peace  without  prejudice  to  them,  if  the  offer  should  not  succeed  ; 
and  such  offers  are  made  to  stop  litigation,  without  regard  to  the 
question  whether  any  thing  is  due  or  not.  If,  therefore,  the  de- 
fendant, being  sued  for  XlOO,  should  offer  the  plaintiff'  £20,  this 
is  not  admissible  in  evidence,  for  it  is  irrelevant  to  the  issue  ;  it 
neither  admits  nor  ascertains  any  debt ;  and  is  no  more  than  say- 
ing, he  would  give  X20  to  be  rid  of  the  action.^  But,  in  order 
to  exclude  distinct  admissions  of  facts,  it  must  appear  either  that 
they  were  expressly  made  without  prejudice,  or,  at  least,  that  they 
were  made  under  the  faith  of  a  pending  treaty,  and  into  which 
the  party  might  have  been  led  by  the  confidence  of  a  compromise 
taking  place.  But,  if  the  admission  be  of  a  collateral  or  indiffer- 
ent fact,  such  as  the  handwriting  of  the  party,  capable  of  easy 
proof  by  other  means,  and  not  connected  with  the  merits  of  the 
cause,  it  is  receivable,  though  made  under  a  pending  treaty.^     It 


1  Cory  V.  Bretton,  4  C.  &  P.  462; 
Healey  v.  Thatcher,  8  C.  &  P.  388.  Com- 
munications between  the  clerk  of  the 
plaintiff's  attorney,  and  the  attorney  of 
the  defendant,  with  a  view  to  a  compro- 
mise, have  been  held  privileged,  under  this 
ride.  Jardine  v.  Sheridan,  2  C  &  K.  24. 
[In  Jones  i'.  Foxall,  13  Eng.  Law  &  Eq. 
140,  145,  Sir  John  Romilly,  Master  of  the 
Rolls,  said :  "  I  shall,  as  far  as  I  am  able, 
in  all  cases,  endeavor  to  suppress  a  prac- 
tice whicli,  when  I  was  first  acquainted 
with  the  profession,  was  rarely,  if  ever, 
ventured  upon,  but  whicli,  according  to 
my  experience,  has  been  common  of  late  ; 
namely,  that  of  attempting  to  convert  of- 
fers of  compromise  into  admissions  and 
acts  prejudicial  to  the  parties  making 
them.  If  tliis  were  permitted,  the  effect 
would  be  that  no  attempt  to  compromise 
a  suit  would  ever  be  made.  If  no  reser- 
vation of  the  parties  who  make  an  offer 
of  compromise  could  pre  vent  that  offer  and 
tiie  letters  from  being  afterwards  given  in 
evidence,  and  made  use  of  against  them, 
it  is  obvious  that  no  such  letters  would  be 


written  or  offers  made.  In  my  opinion, 
such  letters  and  offers  are  admissible  for 
one  purpose  only,  i.p.,  to  show  that  an  at- 
tempt has  been  made  to  compromise  tlie 
suit,  which  may  be  sometimes  necessary  ; 
as,  for  instance,  in  order  to  account  for 
lapse  of  time,  but  never  to  fix  the  persons 
making  them  with  admissions  contained 
in  such  letters  ;  and  I  shall  do  all  I  can  to 
discourage  this,  which  I  consider  to  be  a 
very  injurious  practice."] 

2  Bull.  N.  P.  236  ;  Gregory  v.  Howard, 
3  Esp,  118,  Ld.  Kenyon  ;  Marsh  v.  Gold. 
2  Pick.  290  ;  Gerrish  v.  Sweetser,  4  Pick. 
374,  377;  Wayman  v.  Hilliard,  7  Bing. 
101;  Gumming  v.  French,  2  Campb.  106, 
n. ;  Glassford  on  Evid.  p.  330.  See  Moly- 
neaux  v.  Collier,  13  Geo.  400.  But 
an  offer  of  compromise  is  admissible, 
where  it  is  only  one  step  in  the  proof  that 
a  compromise  has  actually  been  made. 
Collier  v.  Nokes,  2  C.  &  K.  1012. 

"*  Waldridge  v.  Kenison,  1  Esp  143, 
per  Lord  Kenyon.  The  American  courts 
have  gone  farther,  and  held,  that  evidence 
of  the  admission  of  any  independent  fact 


230 


LAW   OF  EVIDENCE. 


[part  n. 


is  the  condition,  tacit  or  express,  that  no  advantage  shall  be  taken 
of  tlie  admission,  it  being  made  with  a  view  to,  and  in  further- 
ance of,  an  amicable  adjustment,  that  operates  to  exclude  it.  But, 
if  it  is  an  independent  admission  of  a  fact,  merely  because  it  is  a 
fact,  it  will  be  received  ;  and  even  an  offer  of  a  sum,  by  way  of 
compromise  of  a  claim  tacitly  admitted,  is  receivable,  unless  accom- 
panied with  a  caution  that  the  offer  is  confidential.^ 

§  193.  Constraint.  In  regard  to  admissions  made  binder  circum- 
stances of  constraint^  a  distinction  is  taken  between  civil  and  crim- 
inal cases  ;  and  it  has  been  considered,  that,  on  the  trial  of  civil 
actions,  admissions  are  receivable  in  evidence,  provided  the  com- 
pulsion under  which  they  are  given  is  legal,  and  the  party  was 
not  imposed  upon,  or  under  duress.^  Thus,  in  the  trial  of  Collett 
V.  Lord  Keith,  for  taking  the  plaintiff's  ship,  the  testimony  of  the 
defendant,  given  as  a  witness  in  an  action  between  other  parties, 
in  which  he  admitted  the  taking  of  the  ship,  was  allowed  to  be 
proved  against  him  ;  though  it  appeared  that,  in  giving  his  evi- 
dence, when  he  was  proceeding  to  state  his  reasons  for  taking  the 
ship,  Lord  Kenyon  had  stopped  him  by  saying  it  was  unnecessary 
for  him  to  vindicate  his  conduct.^     The   rule   extends   also  to 


is  receivable,  tliougli  made  during  a  treaty 
of  compromise.  See  Mount  v.  Bogert, 
Anthon's  Hep.  190,  per  Thompson,  C.J.  ; 
Murray  v.  Coster,  4  Cowen,  035;  Fuller 
V.  Hampton,  5  Conn.  416,  426;  Sanborn 
V.  Neilson,  4  N.  H.  501,  608,  5UU  ;  IX'logny 
r.  Kcntoul,  1  Martin,  175;  Marvin  ;'. 
Riclimond,  3  Den.  58;  Cole  o.  Cole,  34 
Maine,  542  [Harrington  v.  Lincoln,  4 
Gray,  563,  567 ;  Corinth  v.  Lincoln,  34 
Maine,  310].  Lord  Kenyon  afterwards 
rela.xed  his  own  rule,  saying  that  in  future 
lie  should  receive  evidence  of  all  admis- 
sions, such  as  the  party  would  be  obliged 
to  make  in  answer  to  a  bill  in  equity  ;  re- 
jecting none  but  such  as  are  merely  con- 
cessions for  the  sake  of  making  peace  and 
getting  rid  of  a  suit.  Slack  v.  Huchanan, 
Peake's  Cas.  5,  6;  Tait  on  Evid.  p.  293. 
A  letter  written  by  the  adverse  party, 
"  without  prejudice,"  is  inadmissible. 
llealey  v.  Thatcher,  8  C.  &  P.  3»8.  [  But 
the  writer  of  such  a  letter  is  not  precluded 
from  using  it  in  his  own  favor.  Williams 
V.  Thomas,  2  Drew.  &  Sm.  2'J.] 

1  Wallace  v.  Small.  1  M.  &  M.  440 ; 
Watts  V.  Lawson.  I<1.  447,  n.  ;  Dickinson 
V.  Dickinson,  9  Met.  471  ;  Thompson  v. 
Austen,  2  Dowl.  &  Hy.  358.  In  this  case 
Bay  ley,  J.,  remarked  that  the  essence  of 
an  offer  to  compromise  was,  that  the  party 


making  it  was  willing  to  submit  to  a  sacri- 
fice, and  to  make  a  concession.  Hartford 
Bridge  Co.  v.  Granger,  4  Conn.  148 ;  Ger- 
rish  V.  Sweetser,  4  Pick.  374,  377  ;  Murray 
V.  Coster,  4  Cowen,  617,  635.  Admissions 
made  before  an  arbitrator  are  receivable 
in  a  subsequent  trial  of  the  cause,  the 
reference  having  proved  ineffectual. 
Slack  V.  Buchanan,  Peake's  Cas.  5.  See 
also  Gregory  v.  Howard,  3  Esp.  113. 
Collier  v.  Nokes,  2  C.  &  K.  1012.  [Where 
a  party  sued  on  a  note  offered  to  pay  one 
half  in  cash,  and  ime  half  by  a  new  note 
with  an  indorser,  and  admitted  at  the 
same  time  that  he  owed  the  note,  it  was 
lield  that  the  admission  might  be  used 
against  him.  Snow  v.  Batchelder,  8  Cush. 
613.] 

2  [The  rule  excluding  confessions 
made  under  undue  influence  Mpi)lies  only 
to  the  confessions  of  a  ])erson  on  trial  in 
a  criminal  case.  Newliall  v.  Jenkins,  2 
Gray,  562.] 

3  Collett  V.  Lord  Keith,  4  Esp.  212,  per 
Le  Blanc,  J.,  who  remarked,  that  the 
manner  in  which  the  evidence  had  been 
obtained  might  be  matter  of  observation 
tothe  jury  ;  but  that,  if  what  was  said  bore 
in  any  way  on  the  issue,  he  was  bound  to 
receive  it  as  evidence  of  the  fact  itself. 
See  also  Milward  v.  Forbes,  4  Esp.  171. 


CHAP.  XI.]  OF  ADl^nSSIONS.  231 

answers  voluntarily  given  to  questions  improj^erly  asked,  and  to 
wliich  the  witness  might  successfully  have  objected.  So,  the  vol- 
untary answers  of  a  banfaupt  before  the  commissioners  are  evi- 
dence in  a  subsequent  action  against  the  party  himself,  though 
he  might  have  demm-red  to  the  questions ;  or  the  whole  exami- 
nation was  irregular,!  unless  it  was  obtained  by  imposition  or 
duress. 2 

§  194.  Direct  and  incidental.  There  is  no  difference,  in  regard 
to  the  admissibility  of  this  sort  of  evidence,  between  direct  admis- 
sions and  those  which  are  incidental,  or  made  in  some  other  con- 
nection, or  involved  in  the  admission  of  some  other  fact.  Thus, 
where,  in  an  action  against  the  acceptor  of  a  bill,  his  attorney 
gave  notice  to  the  plaintiff  to  produce  at  the  trial  all  papers,  &c., 
which  had  been  received  by  him  relating  to  a  certain  bill  of  ex- 
change (describing  it),  wliich  "was  accepted  by  the  said  defend- 
ant ;  "  this  was  held  prima  facie  evidence,  by  admission  that  he 
accepted  the  bill.^  So,  in  an  action  by  the  assignees  of  a  bank- 
rupt, against  an  auctioneer,  to  recover  the  jDroceeds  of  sales  of  a 
bankrupt's  goods,  the  defendant's  advertisement  of  the  sale,  in 
which  he  described  the  goods  as  "  the  property  of  D.,  a  bankrupt," 
was  held  a  conclusive  admission  of  the  fact  of  bankruptcy,  and 
that  the  defendant  was  acting  under  his  assignees.*  So,  also,  an 
undertaking  by  an  attorney,  "to  appear  for  T.  and  R.,  joint-own- 
ers of  the  sloop  '  Arundel,'  "  was  held  sufficient  prima  facie  evi- 
dence of  ow^nersliip.^ 

§  195.  Assumed  character.  Other  admissions  are  implied  from 
assumed  character,  language,  and  conduct,  which,  though  hereto- 
fore adverted  to,^  ma}'"  deserve  further  consideration  in  this  place. 
Where  the  existence  of  any  domestic,  social,  or  official  relation 
is  in  issue,  it  is  quite  clear  that  any  recognition,  in  fact,  of  that 

1  Stockfleth  V.  De  Tastet,  4  Campb.  in  a  criminal  prosecution.     Rex  r.  Brit- 

10 ;  Smith  v.  Beadnell,  1  Campb.  30.     If  ton,  1  M.  &  Rob.  207.     The  case  of  Rex  v. 

tlie  commission  has  been  perverted  to  im-  Merceron,  2  Starli.  366,  which  seems  to 

proper  purposes,  the   remedy  is   by  an  the  contrary,  is  questioned  and  explained 

application  to  have  the  examination  taken  by  Lord  Tenterden,  in  Rex  v.  Gilham,  1 

from  the  files  and  cancelled.     4  Campb.  Mood.   Cr.  Cas.  203.     See  infra,  §§  225, 

11,  per  Ld.  Ellenborongh ;    Milward   v.  451 ;  Reg.  v.  Garbett,  1  Denis.  C.  C.  236. 
Forbes,  4  Esp.  171 ;  2  Stark.  Evid.  22.  3  Holt  v.  Squire,  Ry.  &  M.  282. 

-  Robson  V.  Alexander,  1  Moore  &  P.  *  Maltby  v.  Christie,  1    Esp.  342,  as 

448;  Tucker  v.  BaiTow,  7  B.  &  C.  623.  expounded   by    Lord    Ellenborough,    in 

But  a  legal  necessity  to  answer  the  ques-  Rankin  v.  Horner,  16  East,  193. 
tions,  under  peril  of  punishment  for  con-  5  Marshall  v.  Cliff,  4  Campb.  133,  per 

tempt,  it  seems,  is  a  valid  objection  to  Ld.  Ellenborough. 
the  admission  of  the  answers  in  evidence,  ^  Supra,  §  27.     [And  see  post,  §  207.] 


2Z'Z 


LAW   OF  EVIDENCE. 


[pAKT  n. 


relation,  is  prima  facie  evidence  against  the  person  making  such 
recognition,  that  the  relation  exists.^  This  general  rule  is  more 
frequently  applied  against  a  person  who  has  thus  recognized  the 
character  or  office  of  another  ;  but  it  is  conceived  to  embrace,  in 
its  principle,  any  representations  or  language  in  regard  to  him- 
self. T]ius,  where  one  has  assumed  to  act  in  an  official  character, 
this  is  an  admission  of  his  appointment  or  title  to  the  office,  so 
far  as  to  render  him  liable,  even  criminally,  for  misconduct  or 
neglect  in  such  office.^  So,  where  one  has  recognized  the  official 
character  of  another,  by  treating  with  him  in  such  character,  or 
otherwise,  this  is  at  least  prima  facie  evidence  of  his  title,  against 
the  party  thus  recognizing  it.^  So,  the  allegations  in  the  declara- 
tion or  pleadings  in  a  suit  at  law  have  been  held  receivable  in 
evidence  against  the  party,  in  a  subsequent  suit  between  him 
and  a  stranger,  as  his  solemn  admission  of  the  truth  of  the  facts 
recited,  or  of  his  understanding  of  the  meaning  of  an  instrument ; 
though  the  judgment  could  not  be  made  available  as  an  estoppel, 
unless  between  the  same  parties,  or  others  in  privity  with  them.* 


1  Dickinson  v.  Coward,  1  B.  &  A.  677, 
679,  per  Ld.  Ellenboroiigh  ;  Radford,  q.  t. 
V.  Mclntosli,  3  T.  R.  632. 

2  Bevan  v.  Williams,  3  T.  R.  635,  per 
Ld.  Mansfield,  in  an  action  against  a  cler- 
gyman, for  non-residence ;  Rex  v.  Gard- 
ner, 2  Campb.  513,  against  a  military 
officer,  for  returning  false  musters;  Rex 
r.  Kerne,  2  St.  Tr.  957,  960;  Rox  v. 
Brommick,  Id.  961,962;  Rex  v.  Atkins, 
Id.  96i,  wliich  were  indictments  for  high 
treason,  being  popish  priests,  and  remain- 
ing forty  days  witiiin  the  kingdom ;  Rex 
V.  Borrett,  6  C.  &  P.  124,  an  indictment 
ajjainst  a  letter-carrier,  for  embezzle- 
ment ;  Trowbridge  v.  Baker,  1  Cowen, 
251,  against  atoll-gatherer,  for  penalties  ; 
Lister"?;.  Priestley,  VVightw.  07,  against  a 
collector,  for  penalties.  See  also  Cross 
V.  Kave,  6  T.  R.  063;  Lipscombe  v. 
Holmes,  2  Campb.  -ill ;  Radford  v.  Mc- 
intosh, 3  T.  R.  632. 

3  Peacock  v.  Harris,  10  East,  104,  by 
a  renter  of  turnpike  tolls,  tor  arrearages 
of  tolLs  due ;  Uadford  v.  Mcintosh,  3  T. 
R.  0:52,  by  a  farnu'r-general  of  tlie  post- 
horse  duties,  against  a  letter  of  horses, 
for  certain  statute  penalties;  Pritchard 
V.  Walker,  3  C.  &  P.  212.  by  the  clerk  of 
the  trustees  of  a  turnpike  roail,  against 
one  of  the  trustees  ;  Dickinson  v.  Coward, 
1  B.  &  A.  677.  by  tlie  assignee  of  a  bank- 
rupt, against  a  debtor,  wiio  had  made 
the  assignee  a  partial  payment.     In  Ber- 


ryman  v.  Wise,  4  T.  R.  366,  which  was 
an  action  by  an  attorney  for  slander,  in 
charging  him  with  swindling,  and  threat- 
ening to  have  him  struck  off  the  roll  of 
attorneys,  the  court  held  that  this  threat 
imported  an  admission  that  the  plaintiff 
was  an  attorney.  Cummin  c.  Smith,  2 
Serg.  &  R.  440.  But  see  Smith  v.  Taylor, 
1  New  R.  196,  in  which  the  learned  judges 
were  equally  divided  upon  a  point  some- 
what similar,  in  the  case  of  a  physician  ; 
but,  in  the  former  case,  the  roll  of  attor- 
neys was  expressly  mentioned,  while  in 
the  latter,  the  plaintiff  was  merely  spoken 
of  as  "  Doctor  S.,"  and  the  defendant  had 
been  employed  as  his  apothecary.  If, 
however,  the  slander  relates  to  the  want 
of  qualification,  it  was  held  by  Mansfield, 
C.  J.,  that  the  plaintiff  must  ])rove  it ; 
but  not  where  it  was  confined  to  mere 
miscoiuluct.  1  New  R.  207.  See  to  this 
point,  Moises  v.  Thornton,  8  T.  R.  303; 
Wilson  V.  Carnegie,  1  Ad.  &  El.  695,  703, 
per  Ld.  Denman,  C.  J.  See  further, 
Divoll  V.  Leadl)ettcr,  4  Pick.  220;  Crofton 
V.  Poole,  1  B.  &  Ad.  568;  Rex  r.  Barnes, 
1  Stark.  243  ;  Phil.  &  Am.  on  Evid.  369, 
370.  371 ;  1  Phil.  Evid.  351,  352. 

*  Tiley  v.  Cowling,  1  Ld.  Ravm.  744; 
8.  c.  Bull.  N.  P.  243.  See  siijmi,  §§  171, 
194;  jh/iy?,  §§  205,  210,  627«»,  555;  Rob- 
inson u.  Swett,  3  Greenl.  316 :  Wells  v. 
Compton,  3  Rob.  (La.)  171;  Parsons  v. 
Copeland,  33  Maine,   370   [Williams  v. 


CHAP.  XI.]  OF  ADinSSIONS.  233 

§  196.  Conduct.  Admissions  implied  from  tlie  conduct  of  the 
party  are  governed  by  the  same  principles.  Thus,  the  suppres- 
sion of  documents  is  an  admission  that  their  contents  are  deemed 
unfa^'orable  to  the  party  suppressing  them.^  The  entry  of  a 
charge  to  a  particular  person,  in  a  tradesman's  book,  or  the  mak- 
ing out  of  a  bill  of  parcels  in  his  name,  is  an  admission  that  they 
were  furnished  on  his  credit,^  The  omission  of  a  claim  by  an 
insolvent,  in  a  schedule  of  the  debts  due  to  him,  is  an  admission 
that  it  is  not  due.^  Payment  of  money  is  an  admission  against 
the  payer  that  the  receiver  is  the  proper  person  to  receive  it,  but 
not  against  the  receiver  that  the  payer  was  the  person  who  was 
bound  to  pay  it ;  for  the  party  receiving  payment  of  a  just  demand 
may  well  assume,  without  inquiry,  that  the  person  tendering  the 
money  w^as  the  person  legally  bound  to  pay  it.*  Acting  as  a  bank- 
rupt, under  a  commission  of  bankruptcy,  is  an  admission  that  it 
was  duly  issued.^  Asking  time  for  the  payment  of  a  note  or  bill 
is  an  admission  of  the  holder's  title,  and  of  the  signature  of  the 
party  requesting  the  favor  ;  and  the  indorsement  or  acceptance 
of  a  note  or  bill  is  an  admission  of  the  truth  of  all  the  facts  which 
are  recited  in  it.^ 

§  197.  Silence  and  acquiescence.  Admissions  may  also  be  im- 
phed  from  the  acquiescence  of  the  party.  But  acquiescence,  to 
have  the  effect  of  an  admission,  must  exhibit  some  act  of  the 
mind,  and  amount  to  voluntary  demeanor  or  conduct  of  the  party.'^ 
And  whether  it  is  acquiescence  in  the  conduct  or  in  the  language 
of  others,  it  must  plainly  appear  that  such  conduct  was  fidly 
known,  or  the  language  fully  understood  by  the  party,  before 
any  inference  can  be  drawn  from  his  passiveness  or  silence.  The 
circumstances,  too,  must  be  not  only  such  as  afforded  him  an 

Cheney,  3  Gray,  215;  Judil  I'.  Gibbs,  Id.  *  James     v.    Biou,   2    Sim.    &    Stu. 

539.     See  Church  V.  Shelton,  2  Curtis,  C.  600,    606;   Chapman   y.  Beard,  3  Anstr. 

C.  271 ;  State  v.  Littlefield,  3  R.  I.  124].  9i2. 

1  James  i-.  Biou,  2  Sim.  &  Stu.  600,  ^  Like  v.  Howe,  6  Esp.  20 ;  Clark  v. 
606  ;  Owen  v.  Flack,  Id.  006  [Eldridge  v.  Clark,  Id.  61. 

Hawley,  115  Mass.  410.     See  also,  anfe,  *>  Helmsley  y.  Loader,  2  Campb.  450; 

§  37.     So  the  attempt   to   suborn  false  Critclilow  o.  Parry,  Id.  182;  Wilkin  Jon  u. 

witnesses  is  cogent  evidence  of  an  admis-  Ludwidge,  1  Stra.  648  ;  Robinson  v.  Yar- 

sion  bj'  conduct,  that  the  party's  cause  is  row,  7  Taunt.  455  ;  Taylor  v.  Croker,  4 

an  unrighteous  one.     Moriarty  v.  Lon.  C.  Esp.  187  ;  Bass  v.  Clive,  4   M.  &  S.  13. 

&  D.  R.  R.  Co.,  5  L.  R.  Q.  B.  314].  See  further,  Bayley  on  Bills,  by  Phillips 

2  Storr  et  al.  v.  Scott,  6  C.  &  P.  241;  &  Sewall,  pp.  496-506;  Phil.  &  Am.  on 
Thompson  v.  Davenport,  9  B.  &  C.  78,  86,  Evid.  383,  n.  (2) ;  1  Phil.  Evid.  364,  n.  (1), 
90.  91  [Holding  v.  Elliot,  5  H.  &  N.  117].  and  cases  there  cited. 

3  Nicholls  V.  Uownes,  1  M.  &  Rob.  13;  7  Allen  v.  McKeen,  1  Sumn.  314;  Car- 
Hart  V.  Kewman,  3  Campb.  13.     See  also  ter  v.  Bennett,  4  Fla.  340. 

Tilghman  v.  Eisher.  9  Watts,  441 . 


234 


LAW   OF  EVIDENCE. 


[part  n. 


opportunitj  to  act  or  to  speak,  but  such  also  as  would  prop- 
erly and  naturally  call  for  some  action  or  reply,  from  men  simi- 
larly situated.!  Thus,  where  a  landlord  quietly  suffers  a 
tenant  to  expend  money  in  making  alterations  and  improve- 
ments on  the  premises,  it  is  evidence  of  his  consent  to  the  alter- 
ations.2  If  the  tenant  personally  receives  notice  to  quit  at  a 
particular  day,  without  objection,  it  is  an  admission  that  his 
tenancy  expires  on  that  day.^  Thus,  also,  among  merchants,  it 
is  regarded  as  the  allowance  of  an  account  rendered,  if  it  is 
not  objected  to,  without  unnecessary  delay.*  A  trader  being 
inquired  for,  and  hearing  himself  denied,  may  thereby  commit 
an  act  of  bankruptcy.^  And,  generally,  where  one  knowingly 
avails  himself  of  another's  acts,  done  for  his  benefit,  this  will  be 
held  an  admission  of  his  obligation  to  pay  a  reasonable  com- 
pensation.^ 


V 


1  [Commonwealth  v.  Harvey,  1  Grav, 
487,  489 ;  Boston  &  W.  R.  R.  Corp.  V 
Dana,  Id.  83,  104 ;  Commonwealth  v. 
Kenney,  12  Met.  235  ;  Brainard  v.  Buck, 
25  Vt.  573  ;  Corser  v.  Paul,  41  N.  H.  24  ; 
Wilkins  v.  Stidger,  22  Cal.  231;  Aher- 
crombie  v.  Allen,  29  Ala.  281 ;  Rolfe  v. 
Rolfe,  10  Geo.  143.  And  it  must  appeal- 
that  the  party  knew  of  the  subject-matter 
stated,  or  had  means  of  knowing.  ICd- 
wards  v.  Williams,  3  Miss.  814.]  To 
affect  a  party  with  the  statements  of 
otiiers,  on  the  ground  of  his  implied  ad- 
mission of  their  truth  by  silent  acquies- 
cence, it  is  not  enough  that  they  were 
made  in  his  presence  ;  for,  if  they  were 
given  in  evidence  in  a  judicial  proceed- 
ing, he  is  not  at  liberty  to  interpose  when 
and  how  he  pleases,  though  a  party ;  and 
therefore  is  not  concluded.  Melen  v. 
Andrews,  1  M.  &  M.  336.  See  also  Allen 
V.  McKeen,  1  Sumn.  217,  313,  314;  Jones 
V.  Morrell,  1  Car.  &  Kir.  2(J0 ;  Neile  v. 
Jakle,  2  Car.  &  Kir.  709  ;  Peele  r.  Merch. 
Ins.  Co.,  3  Mason,  81 ;  Hudson  v.  Harri- 
son, 3  B.  &  B.  97  ;  in/m,  §§  201,  215,  287. 
If  letters  are  offered  against  a  party,  it 
seems  lie  may  read  his  innnediate  reitlies. 
Roe  V.  Day,  7  C.  &  P.  705.  So,  it  seems, 
he  may  prove  a  previous  conversation 
with  tiie  party,  to  slujvv  the  motive  and 
intention  in  writing  them.  Reay  v.  Rich- 
ardson, 2  C.  M.  &  R.  422. 

2  Doe  V  Allen.  3  Taunt.  78,  80;  Doe 
V.  Pye,  1  Esp.  3GG ;  Ncale  v.  Parkin,  1 
Esp.  229.  See  also  Stanley  v.  White,  14 
East.  332. 

3  Doe  I'.  Biggs,  2  Taunt.  109;  Thomas 
V.  Thomas,  2  Campb.  647 ;  Doe  v.  Foster, 


13  East,  405;  Oakapple  v.  Copous,  4  T. 
R.  361;  Doe  v.  Woombwell,  2  Campb. 
559. 

*  Sherman  v.  Sherman,  2  Vern.  276. 
Hutchins,  Ld.  Com.,  mentioned  "  a  sec- 
ond or  tliird  post,"  as  the  ultimate  period 
of  objection.  But  Lord  Hardwicke  said, 
that  if  tlie  person  to  whom  it  was  sent 
kept  the  account  "for  any  length  of  time, 
without  making  any  objection,"  it  be- 
came a  stated  account.  Willis  v.  Jerne- 
gan,  2  Atk.  252.  See  also  Freeland  v. 
Heron,  7  Cranch,  147,  151  ;  Murray  v. 
Tolland,  .3  Johns.  Ch.  575;  Tickel  v. 
Short,  2  Vcs.  239  [Hayes  v.  Kelley,  116 
Mass.  300.  But  j)arties  are  not  bound  at 
their  peril  to  dispute  an  account  as  often 
as  it  is  presented,  Gibney  c  Marchay, 
.34  N.  Y.  301  ;  Churchill  v.  Fulliam,  8 
Iowa,  45  ;  nor  to  deny  a  statement,  Gar- 
rett V.  Banning,  21  N.  Y.  27].  Daily 
entries  in  a  book,  constantly  open  to  the 
party's  insjiection,  are  admissions  against 
liim  of  tlie  matters  therein  stated.  Al- 
derson  v.  Clay,  1  Stark.  405 ;  Wiltzie  v, 
Adamson,  1  Phil.  Evid.  357.  See  fur- 
ther, Coe  V.  Hutton,  1  Serg.  &  R.  398 ; 
McBride  v.  Watts,  1  McCord,  384;  Corps 
V.  Robinson,  2  Wash.  C.  C.  388.  So,  the 
members  of  a  company  are  chargeable 
with  knowledge  of  the  entries  in  their 
books,  made  by  their  agent  in  the  course 
of  his  business,  and  with  tiieir  true  mean- 
ing, as  understood  bv  the  agent.  Allen 
f.  Coit,  6  Hill  (X.  Y.f,  218. 

6  Key  V.  Shaw,  8  Uing.  320. 

^  Morris  v.  Burdett,  1  Campb.  218, 
where  a  candidate  maile  use  of  the  liust- 
ings  erected  for  an  election ;  Abbott  v. 


CHAP.  XI.] 


OF  ADlSnSSIONS. 


235 


§  198.  Acquiescence.  The  possession  of  documents,  also,  or  the 
fact  of  constant  access  to  them,  sometimes  affords  ground  for 
affecting  parties  with  an  implied  admission  of  the  statements  con- 
tained in  them.  Thus,  the  rules  of  a  club,  contained  in  a  book 
kept  by  the  proper  officer,  and  accessible  to  the  members ;  ^ 
charges  against  a  club,  entered  by  the  servants  of  the  house,  in 
a  book  kept  for  tliat  purpose,  open  in  the  club-room  ;  ^  the  posses- 
sion of  letters,^  and  the  like,  —  are  circumstances  from  which 


Inhabitants  of  Hermon,  7  Greenl.  118, 
where  a  school-house  was  used  by  the 
school  district;  Hayden  v.  Inhabitants  of 
Madison,  Id.  76,  a  case  of  partial  pay- 
ment for  making  a  road.  [The  former 
rule  of  evidence,  that  one's  silence  shall 
be  construed  as  a  virtual  assent  to  all 
tliat  is  said  in  his  presence,  is  susceptible 
of  great  abuse,  and  calls  for  a  course  of 
conduct  wliich  prudent  and  quiet  men 
do  not  generally  adopt.  If  that  rule  be 
sound  to  the  full  extent,  as  laid  down  in 
some  of  the  early  cases,  it  would  be  in 
the  power  of  any  evil-disposed  person  to 
always  ruin  his  adversary's  case,  by 
drawing  him  into  a  compulsory  alterca- 
tion in  the  presence  of  chosen  listeners, 
who  would  be  sure  to  misrepresent  what 
he  said.  Nothing  could  be  more  unjust 
or  unreasonable.  Hence,  in  more  recent 
cases,  the  rule,  in  some  States,  has  under- 
gone very  important  qualifications.  The 
mere  silence  of  one,  when  facts  are  as- 
serted in  his  presence,  is  no  ground  of 
presuming  his  acquiescence,  unless  the 
conversation  were  addressed  to  him, 
under  sucli  circumstances  as  to  call  for  a 
reply.  The  person  must  be  in  a  position 
to  require  the  information,  and  he  must 
ask  it  in  good  faith,  and  in  a  manner 
fairly  entitling  him  to  expect  it,  in  order 
to  justify  any  inference  from  the  mere 
silence  of  the  party  addressed.  If  the 
occasion,  or  the  nature  of  this  demand, 
or  the  manner  of  making  it,  will  reason- 
ably justify  silence,  in  a  discreet  and 
prudent  man,  no  unfavorable  inference 
therefrom  should,  on  that  account,  be 
made  against  the  party.  And  whether 
the  silence  be  any  ground  of  presump- 
tion against  the  party  will  always  be  a 
question  of  law,  unless  there  is  conflict 
in  the  proof  of  the  attending  circum- 
stances. Mattocks  c.  Lyman,  16  Vt.  113 ; 
Vail  V.  Strong,  10  Id.  457  ;  Gale  v.  Lin- 
coln, 11  Vt.  152  ;  post,  §  199.  Where  a 
person  is  inquired  of  as  to  a  matter  which 
may  affect  his  pecuniary  interests,  he  has 
the  riglit  to  know  whether  the  party  mak- 
ing the  inquiry  is  entitled  to  make  it  as 
affecting  any  interest   which  he  repre- 


sents, and  for  the  protection  of  which  he 
requires  tlie  information  sought.  And 
unless  he  is  fairly  informed  upon  these 
points,  he  is  not  bound  to  give  informa- 
tion, and  will  not  be  affected  in  his  pecu- 
niarv  interests  in  consequence  of  refusal. 
Haekett  v.  Callender,  32  Vt.  97.  The 
same  rule  obtains  as  to  letters  addressed 
to  the  party.  Commonwealth  v.  Jeffreys, 
7  Allen,  548 ;  Same  v.  Eastman,  1  Cush. 
189.  But  if  the  party  consent  to  give 
any  explanation,  it  becomes  evidence, 
although  drawn  from  him  by  a  false  sug- 
gestion. Higgins  V.  Dellinger,  22  Mis. 
397.  And  even  a  plea  of  "guilty,"  in  a 
criminal  proceeding  against  the  party  for 
assault  and  battery,  will  be  evidence 
against  him  in  a  civil  action  for  the 
same.  Birchard  v.  Booth,  4  Wis.  67. 
But,  as  a  general  rule,  admissions  in  the 
pleadings  in  one  suit  will  not  be  evidence 
against  the  party  in  another  suit,  unless 
signed  by  him  personally,  in  which  case 
there  is  no  reason  why  they  should  not 
be  so  regarded,  to  the  same  extent  as  any 
other  admissions.  Mariauski  v.  Cairns,  1 
Macq.  Ho.  Lds.  Cas.  212.  Admissions 
in  the  same  action  for  one  purpose  may 
be  used  for  another,  or  where  in  assump- 
sit against  two,  upon  a  joint  promise,  both 
pleaded  non-assumpsit,  and  one  infancy. 
The  plaintiff  admitted  the  infancy  of  one 
defendant  upon  the  record,  and  discon- 
tinued as  to  that  defendant.  Held,  that 
he  could  not  recover  against  the  other, 
since  his  admission  sliowed  conclusively 
that  there  was  no  joint  promise.  Boyle 
V.  Webster,  17  Q.  B.  950.  The  American 
practice,  however,  is  different  upon  this 
point.  It  is  here  held  that  the  plaintiff 
may  discontinue  as  to  the  infant,  and 
proceed  against  the  other  joint  contrac- 
tors to  judgment.  Hartness  v.  Thomp- 
son, 5  Johns.  160;  Tappan  v.  Abbott, 
cited  1  Pick.  502 ;  Woodward  v.  Newhall, 
Id.  500  ;  Allen  v.  Butler,  9  Vt.  122.] 

1  Raggett  V.  Musgrave,  2  C.  &  P.  556. 

2  Alderson  v.  Clay,  1  Stark.  405;  Wilt- 
zie  V.  Adamson,  1  Phil.  Evid.  357. 

3  Hewitt  V.  Piggott,  5  C.  &  P.  75;  Rex 
V.  Watson,  2  Stark.  140 ;  Home  Tooke's 


236 


LAW   OF  EVIDENCE. 


[PAET  n. 


admissions  by  acquiescence  may  be  inferred.  Upon  the  same 
ground,  the  shipping  list  at  Lloyd's,  stating  the  time  of  a  vessel's 
sailing,  is  held  to  be  prima  facie  evidence  against  an  underwriter, 
as  to  what  it  contains.^ 

§  199.  Caution.  But,  in  regard  to  admissions  inferred  from 
acquiescence  in  the  verbal  statements  of  others,  the  maxim,  Qui 
tacet  consentire  videtur,  is  to  be  applied  with  careful  discrimina- 
tion. "  Nothing,"  it  is  said,  "  can  be  more  dangerous  than  this 
kind  of  evidence.  It  should  always  be  received  with  caution ; 
and  never  ought  to  be  received  at  all,  unless  the  evidence  is  of 
direct  declarations  of  that  kind  which  naturally  calls  for  contra- 
diction ;  some  assertion  made  to  the  party  with  respect  to  his 
right,  which,  by  his  silence,  he  acquiesces  in."  2  A  distinction 
has  accordingly  been  taken  between  declarations  made  by  a  party 
interested  and  a  stranger ;  and  it  has  been  held,  that,  while  what 
one  party  declares  to  the  other,  without  contradiction,  is  admissi- 
ble evidence,  what  is  said  by  a  third  person  may  not  be  so.  It 
may  be  impertinent,  and  best  rebuked  by  silence ;  but  if  it  re- 


case,  25  St.  Tr.  120.  But  tlie  possession 
of  unanswered  letters  seems  not  to  be,  of 
itself,  evidence  of  acquiescence  in  their 
contents  [unless  in  some  way  recognized 
by  the  parties  to  whom  they  were  written, 
Gaskill  v.  Skeene,  14  Q.  B.  G6-1;  Dutton 
V.  Woodman,  0  Cusli.  (Mass.)  262] ;  and, 
therefore,  a  notice  to  produce  such  let- 
ters will  not  entitle  the  adverse  party  to 
give  evidence  of  their  entire  contents, 
but  only  of  so  much  as  on  other  grounds 
would  l)e  admissible,  Fairlee  v.  Denton, 
3  C.  &  P.  10;3  [Doe  v.  Frankis,  11  A.  &  E. 
795.  If  tliey  contain  statements  which 
he  would  naturally  deny  if  untrue,  his 
omission  to  reply  is  evidence  of  their 
truth.  Fenno  v.  Weston,  31  Vt.  345. 
Under  an  indictment  for  obtaining  money 
by  false  pretences,  througli  a  fraudulent 
advertisement  in  a  newspaper,  letters 
Bent  through  the  post-office  to  tiie  ad- 
dress stated  in  the  advertisement,  but 
never  having  been  in  the  prisoner's  pos- 
session, are  admissible,  without  proof 
that  they  were  written  by  the  perscm 
from  whom  they  purport  to  come.  Tiie 
Queen  v.  Cooper,  1  Q.  B.  D.  lUj.  And  a 
letter  found  on  the  prisoner  was  held  to 
be  no  evidence  against  him  of  the  facts 
Btated  in  it.  in  Rex  v.  Piumcr,  Bus.  & 
Ry.  C.  C.  204  [People  v.  Green,  1  Parker, 
C.  R.  11]. 

1  Macintosh  v.  Marshall,  1 1  M.  &  W. 
116. 

2  14  Serg.  &  R.  393,  per  Duncan,  C.  J. ; 


2  C.  &  P.  193,  per  Best,  C.  J.  And  see 
McClenkan  v.  McMillan,  6  Barr,  36(3, 
where  this  maxim  is  expounded  and  ap- 
plied. See  also  Commonwealth  v.  Call, 
21  Pick.  515  [Commonwealth  v.  Kenney, 
12  Met.  235,  237  ;  supra,  §  197.  It  was 
recently  held  in  New  York  (Kelly  v. 
People,  55  N.  Y.  565),  that  the  silence  of 
a  party  under  arrest,  when  he  heard 
statements  tending  to  show  his  guilt, 
was  evidence  against  him,  citing,  as 
authorities.  Com.  i'.  Cuffee,  108  Mass 
285,  and  Com.  v.  Crocker,  Id.  404,  neither 
of  which  cases  supports  the  principle. 
They  were  both  questions  of  positive 
admission  or  confession.  On  the  con- 
trary, it  has  been  expressly  held  in  that 
State,  as  also  elsewhere,  that  silence 
under  such  circumstances  is  not  evidence 
from  which  any  adverse  inference  can 
be  drawn.  Com.  v.  Walker,  13  Allen 
(Mass.),  570;  Bob  v.  State,  32  Ala.  500; 
Noonan  v.  State,  9  Miss.  502.  But  silence 
when  he  has  a  proper  opportunity  to 
speak  is  evidence  of  guilt.  Ilex  v.  Bart- 
lett,  7  C.  &  P.  832;  Keg.  i-.  Api)lel.y,  3 
Stark.  33.  So  where  the  law  allows  him 
to  take  the  stand  in  his  own  belialf,  and 
lie  declines.  State  c.  Bartlett,  55  Maine, 
200.  By  statute  in  Massachusetts,  the 
adverse  inference  from  silence  under 
sucli  circumstances  is  prohibited.  Stat 
1870,  c.  393.  Tills,  of  course,  is  a  clear 
admission  tliat  the  inference  is  natural. 
And  see  post,  §  21(j]. 


CHAP.  XI.]  OF  ADanSSIONS.  287 

ceives  a  reply,  the  reply  is  evidence.  Therefore,  what  the  magis- 
trate, before  whom  the  assault  and  battery  was  investigated,  said 
to  the  parties,  was  held  inadmissible,  in  a  subsequent  civil  action 
for  the  same  assault.^  If  the  declarations  are  those  of  third  per- 
sons, the  circumstances  must  be  such  as  called  on  the  party  to 
interfere,  or  at  least  such  as  would  not  render  it  impertinent  in 
him  to  do  so.  Therefore,  where,  in  a  real  action  upon  a  view  of 
the  premises  by  a  jury,  one  of  the  chain-bearers  was  the  owner 
of  a  neighboring  close,  respecting  the  bounds  of  which  the  litigat- 
ing parties  had  much  altercation,  their  declarations  in  his  pres- 
ence were  held  not  to  be  admissible  against  him,  in  a  subsequent 
action  respecting  his  own  close.^  But  the  silence  of  the  party, 
even  w-here  the  declarations  are  addressed  to  himself,  is  worth 
very  little  as  e\ddence,  where  he  has  no  means  of  knowing  the 
truth  or  falsehood  of  the  statement.^ 

§  200.  Same  subject.  With  respect  to  all  verbal  admissions,  it 
may  be  observed  that  they  ought  to  be  received  tvith  great  caution. 
The  evidence,  consisting  as  it  does  in  the  mere  repetition  of  oral 
statements,  is  subject  to  much  imperfection  and  mistake  ;  the 
party  himself  either  being  misinformed,  or  not  having  clearly 
expressed  his  own  meaning,  or  the  witness  having  misunderstood 
him.  It  frequently  happens,  also,  that  the  witness,  by  uninten- 
tionally altering  a  few  of  the  expressions  really  used,  gives  an 
effect  to  the  statement  completely  at  variance  with  what  the 
party  actually  did  say.*     But  where  the  admission  is  deliberately 

1  Child  V.  Grace,  2  C.  &  P.  193.  Rawls,  2  Nott  &  McCortl,  301 ;   Batturs 

2  Moore  v.  Smith,  14  Serg.  &,  R.  388.  v.  Sellers,  5  Harr.  &  J.  117,  119. 
"WhereA  and  B  were  charged  with  a  joint  *  Earle  v.  Picken,  5  C.  &  P.  542,  n., 
felony,  what  A  stated  before  the  exam-  per  Parke,  J. ;  Rex  v.  Simons,  6  C.  &  P. 
ining'  magistrate,  respecting  B's  partici-  510,  per  Alderson,  B. ;  Williams  v.  Wil- 
pation  in  the  crime,  is  not  admissible  liams,  1  Hagg.  Consist.  304,  per  Sir  AVil- 
evidence  against  B.  Rex  v.  Appleby,  3  liam  Scott ;  Hope  v.  Evans.  1  Sm.  &  M. 
Stark.  33.  Nor  is  a  deposition,  given  in  Ch.  195  [Com.  v.  Sanborn,  116  Mass.  (51]. 
the  person's  presence  in  a  cause  to  which  Alciatus  expresses  the  sense  of  the  civil- 
he  was  not  a  party,  admissible  against  ians  to  the  same  effect,  where,  after 
him.  Mclen  v.  Andrews,  1  M.  &  M.  336.  speaking  of  the  weight  of  judicial  admis- 
See  also  Fairlie  v.  Denton,  3  C.  &  P.  103,  sions,  "  propter  majorem  certitudinem, 
per  Lord  Tenterden  ;  Tait  on  Evidence,  quam  in  se  habet,"  he  adds  :  "  Quaj  ratio 
p.  293.  So  in  the  Roman  law,  "  Confes-  non  habet  locum,  quando  ista  confessio 
sio  facta  seu  pr^sumpta  ex  taciturnitate,  probaretiir  per  testes  ;  imo  est  minus  certa 
in  aliquo  judicio,  non  nocebit  in  alio."  cctleris  probatinnibus,"  &c.  Alciat.  de 
Mascardus  De  Probat.  vol.  i.  concl.  348,  Praesump.  Pars  Secund.  Col.  682,  n.  6. 
n.  31  [Larry  v.  Sherburne,  2  Allen,  35  ;  See  supra,  §§  96,  97  ;  2  Poth.  on  Obi.  by 
Hildreth  v.  Martin,  3  Allen,  371 ;  Fenno  Evans,  App.  No.  16,  §  13  ;  Malin  v.  Mahn, 
V.  Weston,  31  Vt.  345].  1  Wend.  625,  652;  Lench  v.  Lencli,   10 

3  Hayslep  v.  Gj'mer,  1  Ad.  &  El.  162,  Ves.  517,  518,  cited  with  approbation  in 
165,  per  Parke,  J.  See  further  on  the  6  Johns.  Ch.  412,  and  in  Smith  v.  Burn- 
Bubject  of  tacit  admissions.  The  State  v.     ham,  3  Sumn.  438  ;  Stone  v.  Ramsey,  4 


^ 


238 


LAW    OF   EVIDENCE. 


[pAET  n. 


made  and  precisely  identified,  the  evidence  it  affords  is  often  of 
the  most  satisfactory  nature.^ 

§  201.  Effect  of  admissions.  We  are  next  to  consider  the  effect 
of  admissions,  vhen  proved.  And  here  it  is  first  to  be  observed, 
that  the  whole  admission  is  to  be  taken  together ;  for  though  some 
part  of  it  may  contain  matter  favorable  to  the  party,  and  the 
object  is  only  to  ascertain  that  which  he  has  conceded  against 
liiniself,  for  it  is  to  this  only  that  the  reason  for  admitting  his 
own  declarations  applies,  namely,  the  great  probability  that  they 
are  true  ;  yet,  unless  the  whole  is  received  and  considered,  the 
true  meaning  and  import  of  the  part,  which  is  good  evidence 
against  him,  cannot  be  ascertained.  But  though  the  whole  of 
what  he  said  at  the  same  time,  and  relating  to  the  same  subject, 
must  be  given  in  evidence,  yet  it  does  not  follow  that  all  the 
parts  of  the  statement  are  to  be  regarded  as  equally  worthy  of 
credit ;  but  it  is  for  the  jury  to  consider,  under  all  the  circum- 
stances, how  much  of  the  whole  statement  they  deem  worthy  of 
belief,  including  as  well  the  facts  asserted  by  the  party  in  his 
own  favor,  as  those  making  against  him.^ 


Monroe,  236,  239;  Myers  v.  Baker, 
Hardin,  544,  549 ;  Perry  v.  Gerbeau,  5 
Martin,  n.  s.  18,  19  ;  Law  v.  Merrils,  6 
Wend.  268,  277.  It  is  also  well  settled 
that  verbal  admissions,  hastily  and  inad- 
vertently made  without  investigation,  are 
not  binding.  Salem  Bank  y.  Gloucester 
Bank,  17  Mass.  27  ;  Barber  v.  Gingcll,  3 
Esp.  (30.  See  also  Smith  v.  Burnham,  3 
Sumn.  435, 438,  439  ;  Cleveland  v.  Barton, 
11  Vt.  138  ;  Stephens  v.  Vroman,  18  Barb. 
250;  Printup  v.  IMitcheU,  17  Geo.  558. 

1  Kigg  V.  Curgonvcn,  2  Wils.  395,  809  ; 
Glassford  on  Evid.  320  ;  Commonwealth 
V.  Knapp,  9  Pick.  507,  508,  per  Putnam, 
J.  [See  also /MS/,  §  214.  "  In  a  somewhat 
extended  experience  of  jury  trials,  we 
have  been  compelled  to  the  conclusion 
that  the  most  unreliai)lo  of  all  evidence 
is  that  of  the  oral  admissions  of  the  party, 
and  especially  where  they  purport  to 
liave  been  made  during  the  pendency  of 
the  action,  or  after  the  parties  were  in  a 
Btaf*  of  controversy.  It  is  not  uncom- 
mon for  different  witnesses  of  the  same 
conversation  to  give  precisely  opposite 
accounts  of  it ;  and  in  some  instances  it 
will  appear,  that  the  witness  deposes  to 
the  statements  of  one  ])arty  as  coming 
from  tlie  other,  and  it  is  not  very  uncom- 
mon to  find  witnesses  of  tlie  best  inten- 
tions repeating  the  declarations  of  the 
party  in  his  own  favor  as  the  fullest  ad- 


missions of  the  utter  falsity  of  his  claim. 
When  we  reflect  upon  the  inaccuracy  of 
many  witnesses,  in  their  original  compre- 
hension of  a  conversation,  their  extreme 
liability  to  mingle  subsequent  facts  and 
occurrences  with  tlie  original  transac- 
tions, and  the  impossibility  of  recollect- 
ing tlie  precise  terms  used  by  the  party, 
or  of  translating  them  by  exact  equiva- 
lents, we  must  conclude  there  is  no  sub- 
stantial reliance  upon  this  class  of  testi- 
mony. The  fact,  too,  that,  in  the  final 
trial  of  open  questions  of  fact,  both  sides 
are  largely  supported  by  evidence  of  this 
character,  in  the  majority  of  instances, 
must  lead  all  cautious  triers  of  fact 
greatly  to  distrust  its  reliability."  Judge 
liedfield's  addendum  to  this  section 
in  the  twelfth  edition.  But  the  value 
of  the  confession  is  wholly  a  matter  for 
the  jury.  Com.  v.  Gallaghan,  113  Mass. 
202.] 

2  Smith  V.  Blandy,  By.  &  M.  257,  per 
Best,  J. ;  Cray  v.  Halls,  Ih.  c!t.  per  Abbott, 
C.  J. ;  Bermon  v.  Woodbridge,  2  Doug. 
788 ;  Rex  v.  Clewes,  4  C.  &  P.  221,  per 
Littledale,  J. ;  McClcnkan  v.  McMillan,  G 
Barr,  300  ;  Matto(dcs  v.  Lyman,  3  Washb. 
98  ;  Wilson  r.  (Calvert,  8  Ala.  757  ;  Yar- 
borougli  V.  Moss,  9  Ala.  382.  See  supra, 
§  152;  Dorian  u.  Douglass,  0  Barb.  8.  C. 
451.  A  similar  rule  prevails  in  chan- 
cery.    Gresley  on  Evid.  13.     [The  party, 


/ 


CHAP.  XI.] 


OF  AD:snssiONS. 


239 


§  202.  Admissions  containing  hearsay.  "Where  the  admission, 
■whether  oral  or  in  writing,  contains  matters  stated  as  mere  hear- 
say^ it  has  been  made  a  question  whether  such  matters  of  hearsay 
are  to  be  received  in  evidence.  Mr.  Justice  Chambre,  in  the 
case  of  an  answer  in  chancery,  read  against  the  party  in  a  subse- 
quent suit  at  law,  thought  that  portion  of  it  not  admissible ; 
"  for,"  he  added,  "  it  appears  to  me,  that,  where  one  party  reads  a 
part  of  the  answer  of  the  other  party  in  evidence,  he  makes  tlie 
whole  admissible  only  so  far  as  to  waive  any  objection  to  the 
competency  of  the  testimony  of  the  party  making  the  answer, 
and  that  he  does  not  thereby  admit  as  evidence  all  the  facts, 
which  may  happen  to  have  been  stated  by  way  of  hearsay  only, 
in  the  course  of  the  answer  to  a  bill  filed  for  a  discovery."  ^  But 
where  the  answer  is  offered  as  the  admission  of  the  party  against 
whom  it  is  read,  it  seems  reasonable  that  the  whole  admission 
should  be  read  to  the  jury,  for  the  purpose  of  showing  under 
what  impressions  that  admission  was  made,  though  some  parts  of 


by  reading  from  an  answer  in  the  case 
to  prove  the  admission  of  having  indorsed 
a  promissor}'  note,  renders  all  that  portion 
of  tlie  answer  evidence,  although  embrac- 
ing obligations  of  defence.  Gildersleeve 
j;.  Mahoney,  5  Duer,  383.  And  it  has 
been  said,  tliat  the  party  against  whom 
an  answer  in  chancery  is  produced  may 
claim  to  have  the  whole  bill  as  well  as 
the  answer  read  as  part  of  his  adversary's 
case,  upon  the  same  ground,  that,  wliere 
one  proves  answers  in  conversation 
against  a  party,  he  may  insist  upon  having 
the  questions  to  which  he  made  the  replies 
put  in  evidence.  Pennell  v.  Meyer,  2  ]M. 
&  Rob.  98,  by  Tindal,  C.  J. ;  s.  c.  8  C.  & 
P.  470.  But  the  rule  in  equity  does  not 
extend  to  putting  in  evidence  matters 
wholly  distinct  from  those  read  by  the 
adversary,  although  found  in  the  same 
answer  and  pleadings,  and  the  rule  is 
practically  the  same  at  law,  as  when  the 
adversary  reads  one  entry  in  a  book,  it 
will  not  justify  reading  the  entire  book, 
tmless  in  some  way  connected  witli  the 
entry  read.  Abljott,  C.  J.,  in  Catt  v. 
Howard,  3  Stark.  N.  P.  C.  3.  Nor  can 
the  party  read  distinct  and  disconnected 
paragraphs  in  a  newspaper,  because  one 
has  been  read  by  his  adversary.  Darby 
V.  Ouseley,  1  H.  &  N.  1 ;  or  a  series  of 
copies  of  letters  inserted  in  a  copy-book, 
because  one  has  been  read.  Sturge  v. 
Buchanan,  2  M.  &  Rob.  90.]  See^also 
the  Queen's  case,  2  Brod.  &  Bing.  208, 
per  Abbott,  C.  J. ;  Randle  (•.  Blackburn, 
5  Taunt.  245  ;  Thompson  v.  Austen,  2  D. 


&  R.  3-38;  Fletcher  v.  Froggart,  3  C.  & 
P.  5G9  ;  Yates  v.  Carnsew,  3  C.  &  P.  99, 
per  Lord  Tenterden ;  Cooper  v.  Smith, 
1-5  East,  103,  107;  Wlutwell  y.  Wyer,  II 
Mass.  0, 10  ;  Garey  v.  Nicholson,  24  Wend. 
3.50 ;  Kelsey  v.  Bush,  2  Hill,  440 ;.  infra, 
§§  215,  218,  and  cases  there  cited.  Where 
letters  in  correspondence  between  the 
plaintiff  and  defendant  were  offered  in 
evidence  by  the  former,  it  was  held  that 
the  latter  might  read  his  answer  to  the 
plaintiff's  last  letter,  dated  the  day  pre- 
vious. Roe  V.  Day,  7  C.  &  P.  705.  And 
where  one  party  produces  the  letter  of 
another,  purporting  to  be  in  reply  to  a 
previous  letter  from  himself,  he  is  bound 
to  call  for  and  put  in  the  letter  to  which 
it  was  an  answer,  as  part  of  his  own 
evidence.  Watson  v.  JMoore,  1  C.  &  Kir. 
626  [Reynolds  v.  Manning,  15  Md.  510. 
It  seems  to  be  settled,  in  the  English 
practice,  that  where  the  party  admits 
letters  to  be  in  Iris  handwriting,  in  order 
to  save  the  expense  of  proof  at  the  trial, 
this  will  preclude  all  objection  to  the  au- 
thenticity of  any  portion  of  such  letters, 
although  obviouslv  in  a  different  hand- 
writing. Hawk  V.  JFreund,  1  F.  &  F.  294] 
1  Roe  V.  Ferrars,  2  B.  &  P.  548.  [In 
Stevens  v.  Vrooman,  1(3  N.  Y.  381,  it  was 
held  not  -to  be  competent  to  give  in  evi- 
dence the  declarations  of  the  opposite 
party,  that  he  had  heard  statements  in- 
consistent with  the  testimony  of  his  own 
witnesses.  Such  evidence  is  none  the 
less  hearsay  because  repeated  by  the 
party.] 


240  LAW   OF  EVIDENCE.  [PART  H. 

it  1)6  only  stated  from  hearsay  and  belief.  And  what  may  or 
may  not  be  read,  as  the  context  of  the  admission,  depends  not 
upon  the  grammatical  structure,  but  upon  the  sense  and  connec- 
tion in  fact.  But  whether  the  party,  against  whom  the  answer 
is  read,  is  entitled  to  have  such  parts  of  it  as  are  not  expressly 
sworn  to  left  to  the  jury  as  evidence,  however  slight,  of  any  fact, 
does  not  yet  appear  to  have  been  expressly  decided.^ 

§  203.  Parol  admissions  in  pais,  when  competent.  It  is  further  tO 
be  observed  on  this  head,  that  the  parol  admission  of  a  party, 
made  eji  pais,  is  competent  evidence  only  of  those  facts  which  may 
lawfully  be  established  by  parol  evidence ;  it  cannot  be  received 
either  to  contradict  documentary  proof,  or  to  supply  the  place  of 
existing  evidence  by  matter  of  record.  Thus,  a  written  receipt 
of  money  from  one  as  the  agent  of  a  corporation,  or  even  an 
express  admission  of  indebtment  to  the  corporation  itself,  is  not 
competent  proof  of  the  legal  authority  and  capacity  of  the  corpo 
ration  to  act  as  such.^  Nor  is  a  parol  admission  of  having  been 
discharged  under  an  insolvent  act  sufficient  proof  of  that  fact, 
without  the  production  of  the'record.^  The  reasons  on  which 
this  rule  is  founded  having  been  already  stated,  it  is  unnecessary 
to  consider  them  further  in  this  place. '^  The  rule,  however,  does 
not  go  to  the  utter  exclusion  of  parol  admissions  of  this  nature, 
but  only  to  their  effect ;  for  in  general,  as  was  observed  by  Mr. 
Justice  Parke,^  what  a  party  says  is  evidence  against  himself, 
whether  it  relate  to  the  contents  of  a  written  instrument,  or  any 
thing  else.  Therefore,  in  replevin  of  goods  distrained,  the  admis- 
sions of  the  plaintiff  have  been  received,  to  show  the  terms  upon 
which  he  hekl  the  premises,  though  he  held  under  an  agreement 
in  writing,  which  was  not  produced."  Nor  does  the  rule  affect 
the  admissibility  of  such  evidence  as  secondary  proof,  after  show- 
ing the  loss  of  the  instrument  in  question. 

§  204.  How  far  conclusive.     With  regard,  then,  to  the  conclu- 

1  2  Bos.  &  Pul.  548,  n. ;  Gresley  on  Pooley,  G  M.  &  W.  GG4  ;  Pritcliard  v.  liasj- 
Evid.  13.  sbawc,   11   Common   Bench,  459.     [Oral 

2  Welland  Canal  Co.  r.  Hathaway,  8  statements  and  achiiissions  arc  admissible 
Wend.  480;  National  Bank  of  St.  Cliarlcs  in  evidence  atruinst  the  party  making 
V.  De  Bcrnalcs,  1  C.  &  P.  6G9;  Jenner  v.  tliem,  though  tliey  involve  wliat  must 
Joliffe.  0  Johns.  0.  necessarily  be  contained  in  some  writing, 

3  Scott  V.  Clare,  3  Campb.  236  ;  Sum-  deed,  or  record.  Smith  v.  Palmer,  6 
mersett  v.  Adamson,  1  Bing.  73,  per  Cush.  613,  5'JO ;  Looniis  v.  Wadham,  8 
Parke,  J.  Gray  (Mass.),  550.] 

*  See  .tiz/im,  §§  or>,  07.  6  Howard    v.   Smith,  3   Scott,  N.  R. 

6  In   Karle  )".  Pieken,  5  C.  &  P.  542;     574. 
Ncwhall   V.    Holt,  Id.   062;    Slaltcrie   v. 


CHAP.  XI.] 


OF  AD:snSSIONS. 


241 


8iveness  of  admissions,  it  is  first  to  be  considered,  that  the  genius 
and  policy  of  the  law  favor  the  investigation  of  truth  by  all 
expedient  and  convenient  methods ;  and  that  the  doctrine  of 
estoppels,  by  which  further  investigation  is  precluded,  being  an 
exception  to  the  general  rule,  founded  on  convenience,  and  for 
the  prevention  of  fraud,  is  not  to  be  extended  beyond  the  reasons 
on  which  it  is  founded.^  It  is  also  to  be  observed,  that  estoppels 
bind  only  parties  and  privies,  and  not  strangers.  Hence  it  fol- 
lows, that  though  a  stranger  may  often  show  matters  in  evidence, 
which  parties  or  privies  might  have  specially  pleaded  by  way  of 
estoppel,  yet,  in  his  case,  it  is  only  matter  of  evidence,  to  be  con- 
sidered by  the  jury.^    It  is,  however,  in  such  cases,  material  to 


1  See  supra,  §  22-26. 

2  This  subject  was  very  clearly  illus- 
trated by  Mr.  Justice  Bayley,  in  deliver- 
ing the  judgment  of  the  court,  in  Heane 
V.  Kogers,  9  B.  &  C.  577,  58(5.  It  was  an 
action  of  trover,  brought  by  a  person 
against  whom  a  commission  of  bank- 
ruptcy Iiad  issued,  against  his  assignees, 
to  recover  the  value  of  goods,  wliich,  as 
assignees,  they  had  sold ;  and  it  appeared 
that  he  had  assisted  the  assignees,  by 
giving  directions  as  to  the  sale  of  the 
goods  ;  and  that,  after  the  issuing  of  the 
commission,  lie  gave  notice  to  tlie  lessors 
of  a  farm  which  lie  held  that  he  had  be- 
come bankrupt,  and  was  willing  to  give 
up  the  lease,  which  the  lessors  thereupon 
accepted,  and  took  possession  of  the 
premises.  And  the  question  was,  whether 
he  was  precluded,  by  this  surrender,  from 
disputing  the  commission  in  the  present 
suit.  On  this  point  the  language  of  the 
learned  judge  was  as  follows  :  "  There  is 
no  doubt  but  that  the  express  admissions 
of  a  party  to  the  suit,  or  admissions  im- 
plied from  his  conduct,  are  evidence,  and 
strong  evidence,  against  him  ;  but  we 
think  that  he  is  at  liberty  to  prove  that 
such  admissions  were  mistaken,  or  were 
imtrue,  and  is  not  estopped  or  concluded 
by  them,  unless  another  person  has  been 
induced  by  tiiem  to  alter  his  condition  ;  in 
Buch  a  case,  the  party  is  estopped  from 
disputing  tlieir  triitii  with  respect  to  that 
person  (and  those  claiming  under  hira), 
and  that  transaction  ;  but  as  to  third  per- 
sons, he  is  not  bound.  It  is  a  well-estab- 
lished rule  of  law,  that  estoppels  bind 
parties  and  privies,  not  strangers.  (Co. 
Lit.  352 «  ;  Com.  Dig.  Estoppel,  C.)  Tlie 
offer  of  surrender  made  in  tliis  case  was 
to  a  stranger  to  this  suit ;  and  though 
the  bankrupt  may  have  been  bound  by 
Lis  representation  that  he  was  a  bank- 

VOL.  I.  li 


rupt,  and  his  acting  as  such,  as  between 
him  and  that  stranger,  to  whom  that 
representation  was  made,  and  who  acted 
upon  it,  he  is  not  bound  as  between  him 
and  the  defendant,  who  did  not  act  on 
the  faith  of  that  representation  at  all. 
The  bankrupt  would,  probably,  not  have 
been  permitted,  as  against  his  landlords, 
—  whom  he  had  induced  to  accept  the 
lease,  without  a  formal  surrender  in  writ- 
ing, and  to  take  possession,  upon  the  sup- 
position that  he  was  a  bankrupt,  and 
entitled  under  6  Geo.  IV.,  c.  16,  §  75,  to 
give  it  up,  —  to  say  afterwards  that  he 
was  not  a  bankrupt,  and  bring  an  action 
of  trover  for  the  lease,  or  an  ejectment 
for  the  estate.  To  that  extent  he  would 
have  been  bound,  probably  no  furtlier, 
and  certainly  not  as  to  any  other  per- 
sons than  those  landlords.  This  appears 
to  us  to  be  the  rule  of  law,  and  we  are 
of  opinion  that  the  bankrupt  was  not  by 
law,  by  his  notice  and  offer  to  surrender, 
estopped;  and  indeed  it  would  be  a  great 
hardship  if  lie  were  preckided  by  such 
an  act.  It  is  admitted,  that  his  surrender 
to  his  commissioners  is  no  estoppel,  be- 
cause it  would  be  very  perilous  to  a  bank- 
rupt to  dispute  it,  and  try  its  validity  by 
refusing  to  do  so.  (See  Flower  v.  Her- 
bert, 2  Ves.  326.)  A  similar  observation, 
though  not  to  tlie  same  extent,  applies  to 
this  act ;  for  whilst  his  commission  dis- 
ables him  from  carrying  on  his  business, 
and  deprives  him,  for  the  present,  of  tiie 
means  of  occup^'ing  liis  farm  with  advan- 
tage, it  would  be  a  great  loss  to  the  bank- 
rupt to  continue  to  do  so ;  paying  a  rent 
and  remaining  liable  to  the  covenants  of 
the  lease,  and  deriving  no  adequate  ben- 
efit ;  and  it  cannot  be  expected  that  he 
should  incur  such  a  loss,  in  order  to  be 
enabled  to  dispute  his  commission  with 
effect.     It  is  reasonable  that  he  should 


242 


LAW   OF  EVIDENCE. 


[part  n. 


consider,  whetlier  tlie  admission  is  made  independently,  and 
because  it  is  true,  or  is  merely  conventional,  entered  into  between 
the  parties  from  other  causes  than  a  conviction  of  its  truth,  and 
only  as  a  convenient  assumption  for  the  particular  purpose  in 
hand.  For  in  the  latter  case,  it  may  be  doubtful  whether  a 
stranger  can  give  it  in  evidence  at  all.^  Verbal  admissions,  as 
such,  do  not  seem  capable,  in  general,  of  being  pleaded  as  estop- 
pels even  between  parties  or  privies ;  but  if,  being  unexplained 
or  avoided  in  evidence,  the  jury  should  wholly  disregard  them, 
the  remed}^  would  be  by  setting  aside  the  verdict.  And  when 
they  are  held  conclusive,  they  are  rendered  effectually  so  by  not 
permitting  the  party  to  give  any  evidence  against  them.  Parol 
or  verbal  admissions,  wliich  have  been  held  conclusive  against 
the  party,  seem  for  the  most  part  to  be  those  on  the  faith  of 
which  a  court  of  justice  has  been  led  to  adopt  a  particular  course 
of  proceeding,  or  on  which  another  person  has  been  induced  to 
alter  his  condition.^  To  these  may  be  added  a  few  cases  of  fraud 
and  crime,  and  some  admissions  on  oath,  which  will  be  considered 
hereafter,  where  the  party  is  estopped  on  other  grounds. 

§  205.  Judicial  admissions.  Judicial  admissions^  or  those  made 
in  court  by  the  party's  attorney,  generally  appear  either  of  record, 
as  in  pleading,  or  in  the  solemn  admission  of  the  attorney,  made 


do  the  best  for  himself  in  the  unfortu- 
nate situation  in  whieli  lie  is  placed. 
[The  doctrine  of  this  covers  admissions 
of  law  as  well  as  fact.  Newton  v.  Lid- 
diard,  12  Q.  B.  927.]  It  is  not  necessary 
to  refer  particularly  to  tiie  cases  in  which 
a  bankrupt  lias  been  precluded  from  dis- 
puting his  commission,  and  wliich  were 
cited  in  argument.  The  earlier  cases 
fall  witliin  the  principle  above  laid  down. 
In  Clark  v.  Clark.  0  Esp.  61,  the  bank- 
rupt was  not  permitted  to  call  that  sale 
a  conversion,  which  he  himself  had  pro- 
cured and  sanctioned ;  in  Like  v.  Ilowe, 
6  Esp.  20,  he  was  precluded  from  con- 
testing the  title  of  person.s  to  be  assignees, 
whom  he  by  his  coiuluct  had  procured  to 
become  so ;  and  the  last  case  on  tliis  sub- 
ject, Watson  V.  Wace,  5  B.  &  C.  loS,  is 
distinguisliahle  from  the  jireseiit,  because 
Wace,  one  of  the  defendants,  was  the 
person  from  whose  suit  the  jilaintiff  had 
been  discharged,  and  therefore,  perhaps, 
he  might  be  estDjipcd  with  respect  to 
that  person  by  his  conduct  towards  him. 
See  also  WcUand  Canal  Co.  ".  Hathaway, 
8  Wend.  483;  Jennings  v.  Whittaker,  4 
Monroe,  50;  Grant  v.  Jackson,  Peake's 


Gas.  203 ;  Ashmore  v.  Hardy,  7  C.  &  P 
501  ;  Carter  v.  Bennett,  4  Fla.  34-3. 

1  PhiL  &  Am.  on  Evid.  388;  1  Phil. 
Evid.  368.  In  Slaney  v.  Wade,  1  Myl. 
&  Cr.  388,  and  Fort  v.  Clark,  1  Russ. 
601,  604,  the  recitals  in  certain  deeils  were 
lield  inadmissible,  in  favor  of  strangers, 
as  evidence  of  pedigree.  But  it  is  to  be 
noted  that  the  parties  to  those  deeds  were 
strangers  to  the  persons  whose  pedigree 
they  undertook  to  recite. 

-  Phil.  &  Am.  on  Evid.  378;  1  Phil. 
Evid.  360.  The  general  doctrine  of  es- 
tojipels  is  thus  stated  by  Lord  Denman  : 
"  Whore  one  by  his  words  or  conduct 
wilfully  causes  another  to  believe  the  ex- 
istence of  a  certain  state  of  things,  and 
induces  bin)  to  act  on  that  belief,  so  as  to 
alter  his  own  jirevious  position,  the  former 
is  concluded  from  averring  against  the 
latter  a  different  state  of  things  as  exist- 
ing at  the  same  time."  Pickard  v.  Sears, 
G  Ad.  &  El.  460,  475.  The  whole  doc- 
trine is  ably  discussed  by  Mr.  Smith,  and 
by  Messrs.  Hare  and  Wallace  in  their 
notes  to  the  case  of  Trevivan  v.  Law- 
rence. See  2  Smith's  Leading  Cases, 
pp.  430-47y  (Am.  ed.). 


CHAP.  XI.]  OF   ADjMISSIONS.  243 

for  the  purpose  of  being  used  as  a  substitute  for  the  regular  legal 
evidence  of  the  fact  at  the  trial,  or  in  a  case  stated  for  the  opinion 
of  the  court.  Both  these  have  been  ah-eady  considered  in  the 
preceding  pages.^  There  is  still  another  class  of  judicial  admis- 
sions, made  by  the  payment  of  mo7iey  into  courts  upon  a  rule 
granted  for  that  purpose.  Here,  it  is  obvious,  the  defendant 
conclusively  admits  that  he  owes  the  amount  thus  tendered  in 
payment ;  ^  that  it  is  due  for  the  cause  mentioned  in  the  declara- 
tion ;  3  that  the  plaintiff  is  entitled  to  claim  it  in  the  character  in 
which  he  sues  ;  *  that  the  court  has  jurisdiction  of  the  matter ;  ° 
that  the  contract  described  is  rightly  set  forth,  and  was  duly  exe- 
cuted ;  ^  that  it  has  been  broken  in  the  manner  and  to  the  extent 
declared ;  ^  and  if  it  was  a  case  of  goods  sold  by  sample,  that  they 
agreed  with  the  sample.^  In  other  words,  the  payment  of  money 
into  court  admits  conclusively  every  fact  which  the  plaintiff 
would  be  obliged  to  prove  in  order  to  recover  that  money .^  But 
it  admits  nothing  beyond  that.  If,  therefore,  the  contract  is 
illegal,  or  invalid,  the  pajnnent  of  money  into  court  gives  it  no 
validity  ;  and  if  the  payment  is  general,  and  there  are  several 
counts,  or  contracts,  some  of  which  are  legal  and  others  not,  the 
coui-t  will  apply  it  to  the  former.^^  So,  if  there  are  two  incon- 
sistent counts,  on  the  latter  of  which  the  money  is  paid  into 
court,  which  is  taken  out  by  the  plaintiff,  the  defendant  is  not 
entitled  to  show  this  to  the  jury,  in  order  to  negative  any  allega- 
tion in  the  first  count.^^  The  service  of  a  summons  to  show  cause 
why  the  party  should  not  be  permitted  to  pay  a  certain  sum  into 

1  See  supra,  §  22-26,  186.  Finnis,  3  Eng.  L.  &  Eq.  548 ;   Schreger 

2  Blackburn  v.  Scholes,  2  Campb.  341 ;  v.  Garden,  16  Jur.  568  [Bacon  v.  Cliarl- 
Eucker  y.  Palsgrave,  1  Campb.  558  ;  s.  c.  ton,  7  Cush.  581,  583.  And  where  the 
1  Taunt.  419 ;  Boyden  v.  Moore,  5  Mass.  declaration  contains  more  than  one  count, 
365,  369.  and  a  part  only  of  the  sum  demanded  is 

3  Seaton  v.  Benedict,  5  Bing.  28,  32;  paid  into  court,  without  specification  as  to 
Bennett  v.  Francis,  2  B.  &  P.  550;  Jones  which  of  the  counts  is  to  be  applied,  such 
V.  Hoar,  5  Pick.  285  ;  Huntington  v.  The  payment  is  an  admission  only  that  the 
American  Bank,  6  Pick.  340.  defendant  owes  the  plaintifi"  the  sum  so 

*  Lipscombe  v.  Holmes,  2  Campb.  441.     paid  on  some  one  or  several  of  the  counts, 

6  Miller  v.  Williams,  5  Esp.  19,  21.  but  it  is  not  an  admission  of  any  indebted- 
<>  Gutteridge  v.  Smith,  2  H.  Bl.  374;     ness  under  any  one   count,  nor  of  a  lia- 

Israel  v.  Benjamin,  3  Campb.  40 ;  Middle-  bility  on  all  of  them.     Hubbard  v.  Knous, 

ton  V.  Brewer,  Peake's  Cas.  15;  Randall  7  Cush.  5-56,  559;  Kingham  v.  Robins,  5 

r.  Lynch,    1   Campb.  352,   357;  Cox   v.  Mees.  &  Welsb.  94;  Archer  v.  English, 

Brain,  8  Taunt.  95.  1  M.  &  G.  873]. 

7  Dyer  v.  Ashton,  1  B.  &  C.  3.  ^^  Ribbans  v.  Crickett,  1  B.  &  P.  264  ; 

8  Leggatt  V.  Cooper,  2  Stark.  103.  Hitchcock  v.  Tyson,  2  Esp.  481,  n. 

9  Dyer  v.  Ashton,  1  B.  &  C.  3  ;  Staple-  .  "  Gould  v.  Oliver,  2  M.  &  Gr.  208,  233, 
ton  V.  Nowell,  6  M.  &  W.  9;  Archer  v.  234;  Montgomery  v.  Richardson,  6  C.  & 
English,  2   Scott,  n.   8.  156 ;    Archer  v.     P.  247. 

Walker,  9  Dowl.  21.    And  see  Story  v. 


244 


LAW   OF  EVrDENCE. 


[part  n. 


court,  and  a  fortiori^  the  entry  of  a  rule  or  order  for  that  purpose, 
is  also  an  admission  that  so  much  is  due.^ 

§  206.  Admissions  by  mistake.  It  is  Only  necessary  here  to 
add,  that  where  judicial  admissions  have  been  made  iviprovidentJy, 
and  hy  mistake,  the  court  will,  in  its  discretion,  relieve  the  party 
from  the  consequences  of  his  error,  by  ordering  a  repleader,  or 
by  discharging  the  case  stated,  or  the  rule,  or  agreement,  if  made 
in  court.2  Agreements  made  out  of  court,  between  attorneys, 
concerning  the  course  of  proceedings  in  court,  are  equally  under 
its  control,  in  effect,  by  means  of  its  coercive  power  over  the 
attorney  in  all  matters  relating  to  professional  character  and  con- 
duct. But,  in  all  these  admissions,  unless  a  clear  case  of  mistake 
is  made  out,  entitling  the  party  to  relief,  he  is  held  to  the  admis- 
sion ;  which  the  court  will  proceed  to  act  upon,  not  as  truth  in 
the  abstract,  but  as  a  formula  for  the  solution  of  the  particular 
problem  before  it,  namely,  the  case  in  judgment,  without  injury 
to  the  general  administration  of  justice.^ 

§  207.  Admissions  acted  upon  conclusive.  Admissions,  whether 
of  law  or  of  fact,  which  have  been  acted  upon  hy  others,  are  con- 
clusive against  the  party  making  them,  in  all  cases  between  him 
and  the  person  whose  conduct  he  has  thus  influenced.^  It  is  of 
no  importance  whether  they  were  made  in  express  language  to 
the  person  himself,  or  implied  from  the  open  and  general  conduct 


1  Williamson  v.  Henley,  G  Bing. 
299. 

2  "  Non  fatetur,  qui  errat,  nisi  jus  igno- 
ravit."  Dig.  lib.  42,  tit.  2, 1.  2.  '"'  Si  vero 
per  errorem  fuerit  facta  ipsa  conf'essio 
(scil.  ab  aclvo(;ato),  client!  concessum  est, 
errore  probato,  usque  ad  sententiam  rovo- 
care."  ^lascanl.  I)e  Probat.  vol.  i.  Qua;st. 
7,  n.  03 ;  LI.  n.  l'J-22  ;  Id  vol.  i.  Concl. 
848,  per  tot.  See  Kohn  v.  Marsli,  3  Rob. 
(La.)  48.  The  principle,  on  wliicli  a 
party  is  relieved  against  judicial  admis- 
sions made  improvidently  and  by  mistake, 
is  equal!}'  ai)plicabie  to  admissions <'/i  pais. 
Accordingly,  where  a  legal  liability  was 
thus  admitted,  it  was  held,  that  the  jury 
were  at  iilierty  to  consider  all  the  cir- 
cumstances, anil  the  mistaken  view  under 
which  it  was  made  ;  that  the  party  might 
sliow  that  the  ailmission  made  by  him 
arose  from  a  mistake  as  to  tlie  law  ; 
and  that  he  was  not  estopped  by  such 
admission,  unless  the  other  party  had 
been  induced  by  it  to  alter  his  condition. 
Newti>n  V.  Belcher,  13  Jur.  253 ;  18  Law  J. 
Q   13.  53;  12  Ad.  &  El.  n.  8.921 ;  Newton 


V.  Liddiard,  Id.  925  ;  Solomon  v.  Solomon, 
2  Kelly,  18. 

3  See  Gresley  on  Evid.  in  Equity,  pp. 
349-358.  The  Roman  law  was  adminis- 
tered in  the  same  spirit.  "  Si  is,  cum  quo 
Lege  Aquilia  agitur,  confessus  est  servum 
occidisse,  licet  non  occiderit,  si  tamen 
occisas  sit  homo,  ex  confesso  tenctur." 
Dig.  lib.  42,  tit.  2, 1.  4 ;  Id.  1.  6.  See  also 
Van  Leeuwen's  Comm.  b.  5,  ch.  21 ; 
Everhardi  Concil.  155,  n  3  "  Cc^fessus 
pro  Jndicato  est."     Dig.  nb.  sup.  I.  1. 

*  See  supra,  §  27 ;  Commercial  Bank 
of  Natchez  v.  King,  3  Rob.  (La.)  243; 
Kinney  v.  Farnsworth,  17  Conn.  355; 
Newto'n  v.  Belcher,  13  Jur.  253;  12  Ad. 
&  Kl.  N.  9.  921;  Newton  i:  Liddiard,  Id. 
925  [Tompkins  i-.  Phillips,  12  Geo.  62. 
But  wlicn  a  party  applies  to  another  for 
information,  on  which  he  intends  to  act, 
and  which  may  affect  tlie  interests  ot  the 
other,  he  ought  to  disclose  these  circum 
stances,  and  if  he  does  not,  the  statements 
made  by  the  other  will  not  be  conclusive 
u^nn  him.  Hackett  v.  Callender,  32  Vt. 
99]. 


CHAP.  XI.]  OF  AD:\nssiONS.  245 

of  the  party.  For,  in  the  latter  case,  the  implied  declaration 
may  be  considered  as  addressed  to  every  one  in  particular,  who 
may  have  occasion  to  act  upon  it.  In  such  cases  the  party  is 
estopped,  on  grounds  of  public  policy  and  good  faith,  from  repu- 
diating his  own  representations.!  This  rule  is  familiarly  illus- 
trated by  the  case  of  a  man  cohabiting  with  a  woman,  and  treating 
her  in  the  face  of  the  world  as  liis  wife,  to  whom  in  fact  he  is  not 
married.  Here,  though  he  thereby  acquires  no  rights  against 
others,  yet  they  may  against  him ;  and,  therefore,  if  she  is  supplied 
with  goods  during  such  cohabitation,  and  the  reputed  husband  is 
sued  for  them,  he  will  not  be  permitted  to  disprove  or  deny  the 
marriage.2  So,  if  the  lands  of  such  woman  are  taken  in  execu- 
tion for  the  reputed  husband's  debt,  as  his  own  freehold  in  her 
right,  he  is  estopped,  by  the  relation  de  facto  of  husband  and  wife, 
from  saying  that  he  held  them  as  her  servant.^  So,  if  a  party 
has  taken  advantage  of,  or  voluntarily  acted  under,  the  bankrupt 
or  insolvent  laws,  he  shall  not  be  permitted,  as  against  persons, 
parties  to  the  same  proceedings^  to  deny  their  regularity.*  So, 
also,  where  one  knowingly  permits  his  name  to  be  used  as  one  of 
the  parties  in  a  trading  firm,  under  such  circumstances  of  pub- 
licity as  to  satisfy  a  jury  that  a  stranger  knew  it,  and  believed 
him  to  be  a  partner,  he  is  liable  to  such  stranger  in  all  transac- 
tions in  which  the  latter  engaged,  and  gave  credit  upon  the  faith 
of  his  being  such  partner.^  On  the  same  principle  it  is,  that, 
where  one  has  assumed  to  act  in  an  official  or  professional  char- 
acter, it  is  conclusive  evidence  against  him  that  he  possesses  that 
character,  even  to  the  rendering  him  subject  to  the  penalties 
attached  to  it.^     So,  also,  a  tenant  who  has  paid  rent,  and  acted 

1  See  supra,  §§  195,  196;  Quick  v.  Cornish  v.  Abington,  4  H.  &  N.  549; 
Staines,  1  B.  &  P.  203;  Graves  v.  Key,  3  Sweeny  v.  Prom.  L.  Ins.  Co.,  14  Ir.  L.  x.  3. 
B.  &  Ad.  318 ;  Straton  v.  Rastall,  2  T.  R.     476.] 

366 ;  VVyatt  v.  Lord  Hertford,  3  East,  147.  ^  Divoll  v.  Leadbetter,  4  Pick.  220. 

2  Watson  V.  Tlirelkeld,  2  Esp.  637 ;  *  Like  v.  Howe,  6  Esp.  20 ;  Clarke  v. 
Robinson  y.Nahor,lCampb.  245;  Munro  Clarke,  Id.  61;  Goldie  v.  Gunstou,  4 
f.  De  Chamant,  4  Campb.  215;  Ryan  v.  Campb.  381 ;  Watson  v.  Wace,  6  B.  &  C. 
Saras,  12  Ad.  &  El.  n.  s.  460  ;  supra,  §  27.  153,  explained  in  Heane  v.  Rogers,  9  B. 
But  where  such  representation  has  not  &  C.  587;  Mercer  v.  Wise,  3  Esp.  219; 
been  acted  upon,  namely,  in  other  trans-  Harmer  v.  Davis,  7  Taunt.  577  ;  Flower 
actions    of    the    supposed    husband,   or  v.  Herbert,  2  Ves.  326. 

wife,  they  are  competent  witnesses  for  ^  Per  Parke,  J.,  in  Dickinson  y.  Valpy, 

each  otlier.     Bathews  v.  Galindo,  4  Bing.  10  B.  &  C.  128,  140,  141  ;  Eox  v.  Clifton, 

610;  Wells   v.  Fletcher,  5  C.  &  P.  12 ;  6  Bing.  779,  794,  per  Tindal,  C.  J.     See 

Tufts  V.  Hayes,  5  N.  H.  452.     [Whatever  also  Kell  v.  Nainby,  10  B^  &  C.  20;  Gui- 

ono,  by  his  words  or  conduct,  leads  an-  don  v.  Robson,  2  Campb.  302. 
other   to  beheve   and  act   upon   to   his  «  See  supra,  §  195,  and  cases  cited  iu 

prejudice,    he   cannot    be   permitted   to  note, 
repudiate.    Freeman  v.  Cooke,  2  Ex.  663 ; 


246 


LAW  OF   EVroENCE. 


[PAUT  n. 


as  such,  is  not  permitted  to  set  up  a  superior  title  of  a  tliird  per- 
son against  his  lessor,  in  bar  of  an  ejectment  brought  by  him ; 
for  he  derived  the  possession  from  him  as  his  tenant,  and  shall 
not  be  received  to  repudiate  that  relation.^  But  this  rule  does 
not  preclude  the  tenant,  who  did  not  receive  the  possession  from 
the  adverse  party,  but  has  only  attorned  or  paid  rent  to  him,  from 
showing  that  this  was  done  by  mistake.^  This  doctrine  is  also 
applied  to  the  relation  of  bailor  and  bailee,  the  cases  being  in 
principle  the  same ;  ^  and  also  to  that  of  princij)al  and  agen';.* 
Thus,  where  goods  in  the  possession  of  a  debtor  were  attached  as 
his  goods,  whereas  they  were  the  goods  of  another  person,  who 
received  them  of  the  sheriff,  in  bailment  for  safe  custody,  as  the 
goods  of  the  debtor,  without  giving  any  notice  of  his  own  title, 
the  debtor  then  possessing  other  goods,  which  might  have  been 
attached,  it  was  held,  that  the  bailee  was  estopped  to  set  up  his 
own  title  in  bar  of  an  action  by  the  sheriff  for  the  goods.^  The 
acceptance  bf  a  bill  of  exchange  is  also  deemed  a  conclusive  ad- 
mission, against  the  acceptor,  of  the  genuineness  of  the  signature 


1  Doe  V.  Pegge,  1  T.  R.  759,  n.,  per 
Ld.  Mansfield ;  Cook  v.  Loxley,  5  T.  R. 
4 ;  Hudson  i;.  Sliarpe,  10  East,  350,  352, 
353,  per  Ld.  Ellenboroiigh ;  Pliipps  v. 
Sculthorpe,  1  B.  &  A.  50,  53 ;  Cornish 
r.  Searell,  8  B.  &  C.  471,  per  Bayley,  J. ; 
Doe  V.  Sniythe,  4  M.  &  S.  347  ;  Doe  v. 
Austin,  9  Blng.  41 ;  Fleaming  v.  Gooding, 
10  Bing.  549;  Jackson  v.  Reynolds,  1 
Caincs,  444  ;  Jackson  v.  Scissan,  3  Jolins. 
499,  504;  Jackson  v.  Dobbin,  Id.  223; 
Jackson  v.  Smith,  7  Cowen,  717  ;  Jackson 
V.  Spear,  7  Wend.  401.  See  1  Phil,  on 
livid.  107. 

2  Williams  v.  Bartholomew,  1  B.  &  P. 
326  ;  Rogers  v.  Pitclier,  0  Taunt.  202,  208 
\sn/>rn,  §  25,  and  notes;  Elliott  i'.  Smith, 
23  Pcnn.  St.  131;  Watson  v.  Lane,  34 
Eng.  Law  &  Eq.  532]. 

»  Gosling  V.  Birnic,  7  Bing.  339;  Phil- 
lips V.  Hall,  8  Wend.  610;  Drown  v. 
Smitii,  3  N.  H.  299 ;  Eastman  v.  Tut- 
tle,  1  Cowen,  248  ;  McNeil  v.  Philip,  1 
McCnrd,  392 ;  Hawes  v.  Watson,  2  B.  & 
C.  640;  Stonard  v.  Dunkin,  2  Campb. 
344  ;  Chapman  v.  Searle,  3  Pick.  38,  44  ; 
Di.xon  i\  Ilamond,  2  B.  &  Aid  310;  Jew- 
ett  V.  Torry,  11  Mass.  219;  Lyman  v, 
Lvman,  Id.  317  ;  Story  on  Bailments, 
§  102  ;  Kieran  v.  Sanders,  0  Ad.  &.  El.  515. 
But  where  the  bailor  was  but  a  trustee, 
and  is  no  longer  liable  over  to  the  cestui 
qui'  trust,  a  delivery  to  the  latter  is  a  good 
defence  for  the  bailee  against  the  bailor. 
This  principle  is  familiarly  applied  to  the 


case  of  goods  attached  by  the  sheriff,  and 
delivered  for  safe-keeping  to  a  person  who 
delivers  them  over  to  the  debtor.  After 
the  lien  of  the  sheriff  is  dissolved,  he  can 
haVe  no  action  against  his  bailee.  Whit- 
tier  V.  Smith,  11  Mass.  211;  Cooper  v. 
Mowry,  16  Mass.  8 ;  Jenny  v.  Rodman, 
Id.  404.  So,  if  the  go(jds  did  not  belong 
to  the  debtor, and  the  bailee  has  delivered 
them  to  the  true  owner.  Learned  v. 
Bryant,  13  Mass.  224  ;  Fisher  v.  Bartlett, 
8  Greenl.  122.  Ogle  v.  Atkinson,  5  Taunt. 
749,  which  seems  to  contradict  the  text, 
has  been  overruled,  as  to  this  point,  by 
Gosling  V.  Birnie,  supra.  See  also  Story 
on  Agency,  §  217,  n. 

*  Story  on  Agency,  §  217,  and  cases 
there  cited.  The  agent,  however,  is  not 
estopped  to  set  up  the  jus  tertii  in  any  caso 
wliere  the  title  of  the  principal  was  ac- 
quired by  fraud  ;  and  the  same  principle 
seems  to  apply  to  other  cases  of  bailment. 
Hardman  v.  Wilcock,  9  Bing.  382,  n. 

6  Dewey  v.  Field,  4  Met.  381.  See 
also  Pitt  V.  Chappelow,  8  M.  &  W.  G16  ; 
Sanderson  v.  Collman,  4  Scott,  N.  R.038  ; 
Heane  v.  Roirers,  9  B.  &  C.  677  ;  Dezoll 
V.  Odell,  3  Hill,  215.  [But  it  has  been 
held  that  a  defendant  in  an  action  of  tro- 
ver, who  induced  the  plaintiff  to  believe, 
when  demanding  the  pr()i)erty,  that  it  was 
in  his  possession  and  control,  is  not 
thereby  estopped  in  law  from  proving 
the  contrary.  Jackson  v.  Pixley,  9  Cash. 
490,  492.] 


CILIP.  XI.]  OF  ADINHSSIONS.  2-17 

of  the  drawer,  though  not  of  the  indorsers,  and  of  the  authority 
of  the  agent,  where  it  was  di-aw^n  by  procuration,  as  well  as  of 
the  legal  capacity  of  the  preceding  parties  to  make  the  contract. 
The  indorsement,  also,  of  a  bill  of  exchange,  or  promissory  note, 
is  a  conclusive  admission  of  the  genuineness  of  the  preceding  sig- 
natures, as  well  as  of  the  authority  of  the  agent,  in  cases  of  proc- 
uration, and  of  the  capacity  of  the  parties.  So,  the  assignment 
of  a  replevin  bond  by  the  sheriff  is  an  admission  of  its  due  execu- 
tion and  validity  as  a  bond.^  So,  where  land  has  been  dedicated 
to  public  use,  and  enjoyed  as  such,  and  private  rights  have  been 
acquired  with  reference  to  it,  the  original  owner  is  precluded 
fi'om  revoking  it.^  And  these  admissions  may  be  pleaded  by 
way  of  estoppel  en  jjais.^ 

§  208.  Truth  or  falsehood  of  admission  immaterial,  when.  It  makes 
no  difference  in  the  operation  of  this  rule,  whether  the  thing  ad- 
mitted was  true  or  false  :  it  being  the  fact  that  it  has  been  acted 
upon  that  renders  it  conclusive.*  Thus,  where  two  brokers,  in- 
structed to  effect  insurance,  wrote  in  reply  that  they  had  got  two 
policies  eifected,  which  was  false  :  in  an  action  of  trover  against 
them  by  the  assured  for  the  two  policies.  Lord  Mansfield  held 
them  estopped  to  deny  the  existence  of  the  policies,  and  said  he 
should  consider  them  as  the  actual  msurers.^  Tliis  principle  has 
also  been  applied  to  the  case  of  a  sheriff,  who  falsely  returned 
that  he  had  taken  bail.^ 

§  209.  Not  acted  upon  not  conclusive.  On  the  other  hand,  verbal 
admissions  which  have  not  been  acted  upon,  and  which  the  party 
may  controvert,  without  any  breach  of  good  faith  or  evasion  of 

1  Scott  V.  Waithman,  3  Stark.  168  ;  5  Harding  v.  Carter,  Park  on  Ins.  p.  4. 
Barnes  v.  Lucas,  Ry.  &  M.  264 ;  Plumer  See  also  Salem  v.  Williams,  8  Wend.  483 ; 
V.  Briscoe,  12  Jur.  351 ;  11  Ad.  &  El.  n.  s.  s.  c.  9  Wend.  147  ;  Cliapnian  v.  Searle, 
46.  3  Pick.  38,  44 ;  Hall  v.  White,  3  C.  &  P. 

2  Cincinnati  v.  White,  6  Pet.  439 ;  136 ;  Den  v.  Oliver,  3  Hawks,  479  ;  Doe 
Hobbs  V.  Lowell,  19  Pick.  405.  v.  Lambly,  2  Esp.   635 ;  1   B.  &  A.  650, 

3  Story  on  Bills  of  Exchange,  §§  262,  per  Lord  Ellenborough  ;  Price  v.  Har- 
263;  Sanderson  v.  Collman,  4  Scott,  wood,  3  Campb.  108;  Stables  v.  Eley, 
N.  R.  638  ;  Pitt  v.  Chappelow,  8  M.  &  W.  1  C.  &  P.  614 ;  Howard  v.  Tucker,  1  B.  & 
616;  Taylor  v.  CVoker,  4  Esp.  187;  Ad.  712.  If  it  is  a  case  of  innocent  niis- 
Draylon  w.  Dale,  2  B.  &  C  293 ;  Haly  v.  take,  still,  if  it  has  been  acted  upon  by 
Lane,  2  Atk.  181 ;  Bass  v.  Clive,  4  M.  &  another,  it  is  conclusive  in  his  favor.  As, 
S.  13 ;  supra,  §§  195-197 ;  Weakley  v.  where  the  supposed  maker  of  a  forged 
Bell,  9  Watts,  273.  note   innocently  paid   it  to  a  bona  Jide 

*  [Where  parties  have  agreed  to  act  holder,  he  shall  be  estopped  to  recover 

upon  an  assumed  state  of  facts,  their  back  the  money.     Salem  Bank  v.  Glou- 

rights  between  themselves  will  be  made  cester  Bank,  17  Mass.  1,  27. 
to  depend  on  such  assumption,  and  not         ^  Simmons  v.  Bradford,  15  Mass.  82; 

upon   the   truth.      M'Cance   v.  Lon.   &  Eaton  v.  Ogier,  2  Greenl.  46. 
N.  W.  R.  R.  Co.,  3  H.  &  C.  343.] 


248  LAW   OF  EVIDENCE.  [PART  H. 

public  justice,  though  admissible  in  evidence,  are  not  held  con- 
clusive against  him.  Of  this  sort  is  the  admission  that  his  trade 
was  a  nuisance,  by  one  indicted  for  setting  it  up  in  another 
place ;  ^  the  admission  by  the  defendant,  in  an  action  for  criminal 
conversation,  that  the  female  in  question  was  the  wife  of  the 
plaintiff ;  ^  the  omission  by  an  insolvent,  in  his  schedule  of  debts, 
of  a  particular  claim,  which  he  afterwards  sought  to  enforce  by 
suit.3  In  these,  and  the  like  cases,  no  wrong  is  done  to  the  other 
party  by  receiving  any  legal  evidence  showing  that  the  admis- 
sion was  erroneous,  and  leaving  the  whole  evidence,  including  the 
admission,  to  be  weighed  by  the  jury.^ 

§  210.  Public  policy.  In  some  other  cases,  connected  with 
the  administration  of  public  justice  and  of  government,  the  ad- 
mission is  held  conclusive,  on  grounds  of  public  policy.  Thus,  in 
an  action  on  the  statute  against  bribery,  it  was  held  that  a  man 
who  had  given  money  to  another  for  his  vote  should  not  be  admit- 
ted to  say  that  such  other  person  had  no  right  to  vote.^  So, 
one  who  has  officiously  intermeddled  with  the  goods  of  another, 
recently  deceased,  is,  in  favor  of  creditors,  estopped  to  deny  that 
he  is  executor.^  Thus,  also,  where  a  ship-owner,  whose  ship  had 
been  seized  as  forfeited  for  breach  of  the  revenue  laws,  applied  to 
the  Secretary  of  the  Treasury  for  a  remission  of  forfeiture,  on  the 
ground  that  it  was  incurred  by  the  master  ignorantly,  and  with- 
out fraud,  and,  upon  making  oath  to  the  application,  in  the  usual 
course,  the  ship  was  given  up,  he  was  not  permitted  afterwards 
to  gainsay  it,  and  prove  the  misconduct  of  the  master,  in  an  action 
by  the  latter  against  the  owner,  for  his  wages,  on  the  same  voy- 
age, even  by  showing  that  the  fraud  had  subsequently  come  to 
his  knowledge.^    The  mere  fact  that  an  admission  was  made  under 

1  Rex  V.  Neville,  Pcake's  Cas.  01.  Staines,  1  B.  &  P.  293.     Where  the  own- 

2  Morris  v.  Miller,  4  Burr.  2057,  fur-  ersof  a  stage-coach  took  up  more  passen- 
ther  c.xpiiiinecl  in  2   Wils.  899,1  Doug,  gcrs  than  were  allowed  by  statute,  and  an 
174  and  Bull.  N.  P.  28.  injury  was  laid  to  have  arisen  from  over- 
s' Mchols  r.  Downcs,!  Mood.  &R.  13;  loading,  the   excess   beyond  the  statute 

Hart  V.  Newman,  3  Campb.  13.  number  was  held  by  Lord  Ellenborough 

4  [But  tlie  effect  of  an  admission  can-  to  be  conclusive  evidence  that  the  aeci- 
not  be  rebutted  by  evidence  that  different  dent  arose  from  that  cause.  Lsrael  v. 
statements  were"  made   at   otlier   times.  Clark.  4  Esp.  259. 

Clark  V.  Huffaher,  2(3  Mo.  2(J4 ;  .Jones  v.  ''  Freeman   v.  Walker,  6   Greenl.  08. 

State,  13  Texas,  168  ;  Hunt  v.  Roglance,  But  a  sworn  entry  at  the  custom-house  of 

11  Cu'sh.  (Mass.)  117.  And  see  poxt,  §  209.]  certain  premises,  as  beingreiited  by  A,  B, 

5  Combe  V.  Pitt,  3  Burr.  1586,  1590;  and  C,  as  partners,  for  the  sale  of  beer, 
Rigg  '•.  Curgenven,  2  Wils.  3'.t5.  though  conclusive  in  favor  of  the  crown, 

«  Heade's  case,  5  Co.  33,  34  ;  Toller's  is  not  conclusive  evidence  of  the  partner- 
Law  of  Ex'rs,  37-41.     See  also  Quick  v.     ship,  in  a  civil  suit,  in  favor  of  a  stranger. 


CHAP.  XI.] 


OF  ADMISSIONS. 


249 


oath  does  not  seem  alone  to  render  it  conclusive  against  tlie  party, 
but  it  adds  vastly  to  the  weight  of  the  testimony,  throwing  upon 
him  the  burden  of  showing  that  it  was  a  case  of  clear  and  inno- 
cent mistake.  Thus,  in  a  prosecution  under  the  game  laws,  proof 
of  the  defendant's  oath,  taken  under  the  income  act,  that  the 
yearly  value  of  his  estate  was  less  than  £100,  was  held  not  quite 
conclusive  against  him,  though  very  strong  evidence  of  the  fact.^ 
And  even  the  defendant's  belief  of  a  fact,  sworn  to  in  an  answer 
in  chancery,  is  admissible  at  law,  as  evidence  against  him  of  the 
fact,  though  not  conclusive. ^ 

§  211.  Admissions  in  deeds.  Admissions  in  deeds  have  already 
been  considered,  in  regard  to  parties  and  privies,^  between  Avhom 
they  are  generally  conclusive  ;  and  when  not  technically  so,  they 
are  entitled  to  great  weight  from  the  solemnity  of  their  nature. 
But  when  offered  in  evidence  by  a  stranger,  or,  as  it  seems,  even 
by  a  party  against  a  stranger,  the  adverse  party  is  not  estopped, 
but  may  repel  their  effect  in  the  same  manner  as  though  they 
were  only  parol  admissions.* 

§  212.  Receipts,  accounts,  &c.  Other  admissions,  though  in 
writing,  not  having  been  acted  upon  by  another  to  his  prejudice, 
nor  falling  within  the  reasons  before  mentioned  for  estopping  the 
party  to  gainsay  them,  are  not  conclusive  against  him,  but  are  left 


Ellis  V.  Watson,  2  Stark.  453.  The 
difference  between  this  case  and  that  in 
the  text  may  be,  that  in  the  latter  the 
party  gained  an  advantage  to  himself, 
which  was  not  the  case  in  the  entry  of 
partnership  :  it  being  onjy  incidental  to 
the  principal  object,  namely,  the  designa- 
tion of  a  place  where  an  excisable  com- 
modity was  sold. 

1  Rex  V.  Clarke,  8  T.  R.  220.  It  is 
observable  that  the  matter  sworn  to  was 
rather  a  matter  of  judgment  than  of 
certainty  in  fact.  But  in  Thornes  v. 
White,  1  Tyrwh.  &  Grang.  110,  the  party 
had  sworn  positively  to  matter  of  fact  in 
his  own  knowledge ;  but  it  was  held  not 
conclusive  in  law  against  him,  though 
deserving  of  much  weight  with  the 
jury.  And  see  Carter  v.  Bennett,  4  Fla. 
343. 

2  Doe  V.  Steel,  3  Campb.  115.  An- 
swers in  chancery  are  always  admissible 
at  law  against  the  party,  but  do  not  seem 
to  be  held  strictly  conclusive,  merely 
because  they  are  sworn  to.  See  Bull. 
N.  P.  236,  237  ;  1  Stark.  Evid.  284  ;  Came- 
ron V.  Lightfoot,  2  W.  Bl.  1190;  Grant  v. 
Jackson,  Peake's   Cas.  203;   Studdy  v. 


Saunders,  2  D.  &  R.  347  ;  De  Whelpdale 
V.  Milburn,  5  Price,  485. 

8  Supra,  §§  22-24,  189,  204.  But  if 
the  deed  has  not  been  delivered,  the 
party  is  not  conclusively  bound.  Robin- 
son V.  Cushman,  2  Denio,  149. 

4  Bowman  v.  Rostron,  2  Ad.  &  El.  295, 
n. ;  Woodward  v.  Larkin,  3  Esp.  286 ; 
Mayor  of  Carlisle  v.  Blamire,  8  East,  487, 
492,  493.  [It  is  scarcely  necessary  to 
say,  that  all  estoppels  in  deed  must  be 
mutual ;  i.e.,  must  bind  both  parties. 
Hence  recitals  in  a  deed  may  bind  a 
party,  in  one  relation  or  capacity,  and 
not  in  another.  2  Smith's  Lead.  Cas. 
442 ;  Taylor's  Evid.  §  82.  And  writers 
of  authority  affirm,  that  "it  is  nor 
clearly  settled,  that  a  party  is  not 
estopped  from  avoiding  his  deed  by  prov- 
ing that  it  was  entered  into  from  a 
fraudulent,  illegal,  or  immoral  purpose." 
Taylor's  Evid.  §  80.  So  the  tenant  is  so 
e'stopped  to  deny  the  title  of  his  land- 
lord, that  he  cannot  take  advantage  of 
any  formal  defect  therein,  which  appears 
in  the  course  of  the  trial  in  a  suit  for  use 
and  occupation.  Dolby  v.  lies,  11  Ad.  & 
El.  335.1 


250 


LAW   OF  EVIDENCE. 


[PAET  n. 


at  large,  to  be  weighed  with  other  evidence  by  the  jury.  Of  this 
sort  are  receipts^  or  mere  acknowledgments,  given  for  goods  on 
money,  whether  on  separate  papers,  or  indorsed  on  deeds  or  on 
negotiable  securities ;  ^  the  adjustme^it  of  a  loss,  on  a  policy  of 
insurance,  made  without  full  knowledge  of  all  the  circumstances, 
or  under  a  mistake  of  fact,  or  under  any  other  invalidating  cir- 
cumstances ;  2  and  accounts  re^idered,  such  as  an  attorney's  bill,^ 
and  the  like.  So,  of  a  bill  in  chancery,  which  is  evidence  against 
the  plaintiff  of  the  admissions  it  contains,  though  very  feeble  evi- 
dence, so  far  as  it  may  be  taken  as  the  suggestion  of  counsel.^ 


'  Skaife  v.  Jackson,  3  B.  &  C.  421 ; 
Graves  )•.  Key,  3  B.  &  A.  313 ;  Straton  v. 
Rastall,2  T.  R.  366;  Fairmaner  y.  Budd, 

7  Bing.  574 ;  Lanipon  v.  Corke,  5  B.  & 
Aid.  606,  611,  per  Holroyd,  J. ;  Harden  v. 
Gordon,  2  Mason,  541,  561;  Fuller  v. 
Crittenden,  9  Conn.  401 ;  Ensign  v.  Web- 
ster, 1  Johns.  Cas.  145 ;  Putnam  v.  Lewis, 

8  Johns.  389;  Stackpole  v.  Arnold,  11 
Mass.  27;  Tucker  v.  Maxwell,  Id.  143; 
Wilkinson  v.  Scott,  17  Mass.  249  [infra, 
§  305.  The  acknowledgment  of  the 
receipt  of  the  purchase-money  in  a  deed 
of  land  is  no  evidence  of  the  fact  against 
a  stranger.  Lloyd  v.  Lynch,  28  Penn.  St. 
419.    The  receipt  of  the  mortgagee,  it 


has  been  held,  is  not  evidence  of  a  pay- 
ment by  the  mortgagor,  at  the  date  of 
the  receipt,  as  against  the  assignee  of  the 
mortgage  whose  title  dates  subsequent  to 
the  date  of  the  receipt.  Foster  v.  Beals, 
21  N.  Y.  Ct.  of  App.  247  (three  judges 
dissenting)]. 

2  Rayner  v.  Hall,  7  Taunt.  725  ;  Shep- 
herd V.  Chewter,  1  Campb.  274,  276,  note 
by  the  reporter;  Adams  v.  Sanders,  1  M. 
&  M.  373 ;  Christian  v.  Coombe,  2  Esp. 
469;  Bilbie  v.  Lumley,  2  East,  469;  El- 
ting  V.  Scott,  2  Johns.  157. 

3  Lovebridge  v.  Botham,  1  B.  &  P.  49. 
*  Bull.  N.  P.  235 ;  Doe  i;.  Sybourn,  7 

T,  R.  3.    See  vol.  iii.  §  276. 


CHAP.  Xn.]  OF  CONFESSIONS.  251 


CHAPTER    XII. 

OF  CONFESSIONS. 

§  213.  Confessions.  The  only  remaining  topic,  under  the  gen- 
eral head  of  admissions,  is  that  of  confessions  of  guilt  in  criminal 
prosecutions,  which  we  now  propose  to  consider.  It  has  already 
been  observed  that  the  rules  of  evidence,  in  regard  to  the  volun- 
tary admissions  of  the  party,  are  the  same  in  criminal  as  in  civil 
cases.  But,  as  this  applies  only  to  admissions  brought  home  to 
the  party,  it  is  obvious  that  the  whole  subject  of  admissions  made 
by  agents  and  third  persons,  together  with  a  portion  of  that  of  im- 
plied admissions,  can  of  course  have  very  little  direct  application 
to  confessions  of  crime  or  of  guilty  intention.  In  treating  this 
subject,  however,  we  shall  follow  the  convenient  course  pursued 
by  other  writers,  distributing  this  branch  of  evidence  into  two 
classes  ;  namely,  firsts  the  direct  confessions  of  guilt ;  and,  secondly^ 
the  indirect  confessions^  or  those  which,  in  civil  cases,  are  usually 
termed  "implied  admissions." 

§  214.  To  be  received  with  caution.  But  here,  also,  as  we  have 
before  remarked  in  regard  to  admissions,^  the  evidence  of  verbal 
confessions  of  guilt  is  to  be  received  with  great  caution.  For, 
besides  the  danger  of  mistake,  from  the  misapprehension  of  wit- 
nesses, the  misuse  of  words,  the  failure  of  the  party  to  express  his 
own  meaning,  and  the  infirmity  of  memory,  it  should  be  recol- 
lected that  the  mind  of  the  prisoner  himself  is  oppressed  by  the 
calamity  of  his  situation,  and  that  he  is  often  influenced  by  mo- 
tives of  hope  or  fear  to  make  an  untrue  confession.^     The  zeal, 

1  Supra,  §  200.  and  not  perfectly  sound  mind ;   that  ho 

2  Hawk.  P.  C.  b.  2,  c.  46,  §  3,  n.  (2);  was  considered  burdensome  to  the  family 
McNally's  Evid.  42,  43,  44 ;  Vaughan  v.  of  the  prisoners,  wlio  were  obliged  to 
Hann,  6  B.  Monr.  341  [Brister  v.  State,  support  him ;  that  on  the  day  of  his  dis- 
26  Ala.  107].  Of  this  character  was  the  appearance,  being  in  a  distant  field,  where 
remarkable  case  of  the  two  Boorns,  the  prisoners  were  at  work,  a  violent 
convicted  in  the  Supreme  Court  of  Ver-  quarrel  broke  out  between  them ;  and 
mont,  in  Bennington  County,  in  Septeni-  that  one  of  them  struck  him  a  severe 
ber  term,  1819,  of  the  murder  of  Russell  blow  on  the  back  of  the  head  with  a 
Colvin,  May  10,  1812.  It  appeared  that  club,  which  felled  him  to  the  ground. 
Colvin,  who  was  the  brother-in-law  of  Some  suspicions  arose  at  that  time  that 
the  prisoners,  was  a  person  of  a  weak  he  was  murdered ;  which  were  increased 


252 


LAW   OF  EVIDENCE. 


[pABT  n. 


too,  whicli  so  generally  prevails,  to  detect  offenders,  especially  in 
cases  of  aggravated  guilt,  and  the  strong  disposition,  in  the  per- 
sons engaged  in  pursuit  of  evidence,  to  rely  on  slight  grounds  of 
suspicion,  which  are  exaggerated  into  sufficient  proof,  together 
with  the  character  of  the  persons  necessarily  called  as  witnesses, 
in  cases  of  secret  and  atrocious  crime,  all  tend  to  impair  the  value 


by  the  finding  of  his  hat  in  the  same  field 
a  few  months  afterwards.  These  suspi- 
cions in  process  of  time  subsided;  but  in 
1S19,  one  of  the  neighbors  having  repeat- 
edly dreamed  of  the  murder,  with  great 
minuteness  of  circumstance,  botii  in  re- 
gard to  his  death  and  the  concealment 
of  his  remains,  the  prisoners  were  vehe- 
mently accused,  and  generally  believed 
guilty  of  the  murder.  Under  strict 
search,  the  pocket-knife  of  Colvin.  and  a 
button  of  his  clothes,  were  found  in  an 
old  open  cellar  in  the  same  field,  and  in 
a  hollow  stump,  not  many  rods  from  it, 
were  discovered  two  nails  and  a  number 
of  bones,  believed  to  be  those  of  a  man. 
Upon  this  evidence,  together  with  their 
deliberate  confession  of  the  fact  of  the 
murder  and  concealment  of  tiie  body  in 
those  places,  they  were  convicted  and 
sentenced  to  die.  On  the  same  day  they 
applied  to  the  legislature  for  a  commuta- 
tion of  the  sentence  of  death  to  that  of 
perpetual  imprisonment ;  which,  as  to 
one  of  tiiem  only,  was  granted.  The 
confession  being  now  withdrawn  and 
contradicted,  and  a  reward  offered  for 
the  discovery  of  the  missing  man,  he  was 
found  in  New  Jersey,  and  returned  home 
in  time  to  prevent  the  execution.  He  iiad 
fled  for  fear  that  they  would  kill  him. 
The  bones  were  those  of  some  animal. 
They  had  been  advised  by  some  misjudg- 
ing friends,  that,  as  they  would  certainly 
be  convicted,  upon  the  circumstances 
proved,  their  only  chance  for  life  was  by 
commutation  of  punishment,  and  that 
this  depended  on  their  making  a  peniten- 
tial confession,  and  thereupon  obtaining 
a  recommendation  to  mercy.  Tiiis  case, 
of  which  tliere  is  a  report  in  the  Law 
Library  of  Harvard  University,  is  criti- 
cally examined  in  a  learned  and  elabo- 
rate article  in  the  North  American  Ke- 
view,  vol.  X.  pp.  418-42'.).  For  other 
cases  of  false  confessions,  see  Wills  on 
Circumstantial  Evidence,  p.  88;  Phil.  & 
Am.  on  Evid.  419;  1  Phil.  Kvid.  307,  n. ; 
Warickshall's  case,  1  Leach,  Cr.  Cas. 
29'.),  n.  Mr.  Chitty  mentions  tiie  case  of 
an  innocent  person  making  a  false  con- 
structive confession,  in  order  to  fi.x  sus- 
picion on  liimself  alone,  tliat  liis  guilty 
brothers  miglit  have  time  to  escape,  —  a 


stratagem  which  was  completely  success- 
ful; after  which  he  proved  an  alibi  in  the 
most  satisfactory  manner.  1  Chitty's 
Crim.  Law,  p.  85;  1  Dickins,  Just.  621),  n. 
See  also  Joy  on  Confessions,  &c.,  pj).  100- 
109.  The  civilians  placed  little  reliance 
on  naked  confessions  of  guilt,  not  cor- 
roborated by  other  testimony.  Carpzo- 
vius,  after  citing  the  opinions  of  Severus 
to  that  effect,  and  enumerating  the  vari- 
ous kinds  of  misery  which  tempt  its 
wretched  victims  to  this  mode  of  suicide, 
adds:  "  Quorum  omnium  ex  his  fontibus 
contra  se  emissa  pronunciatio,  non  tam 
delicti  confessione  firmati  quam  vox 
doloris,  vel  iiisa/iienlls  oratio  est."  B. 
Carpzov.  Pract.  Ilerum  Criminal.  Pars 
III.  Qusest.  114,  p.  100.  The  just  value 
of  these  instances  of  false  confessions  of 
crime  has  been  happily  stated  by  one  of 
the  most  accomplished  of  modern  jurists, 
and  is  best  expressed  in  his  own  lan- 
guage :  "  Whilst  such  anomalous  cases 
ought  to  render  courts  and  juries,  at  all 
times,  extremely  watchful  of  ever^'  fact 
attendant  on  confessions  of  guilt,  the 
cases  should  never  be  invoked,  or  so 
urged  by  the  accused's  counsel,  as  to  in- 
validate indiscriminately  all  confessions 
put  to  the  jury,  thus  repudiating  those 
salutary  distinctions  which  the  court,  in 
the  judicious  exercise  of  its  duty,  shall 
be  enabled  to  make.  Such  a  use  of 
these  anomalies,  which  should  be  re- 
garded as  mere  exceptions,  and  which 
should  speak  only  in  the  voice  of  warn- 
ing, is  no  less  unprofessional  than  impol- 
itic; and  should  be  regarded  as  offensive 
to  the  intelligence  both  of  the  court  and 
jury."  "Confessions  and  circumstantial 
evidence  are  entitled  to  a  known  and 
fixed  standing  in  the  law;  and  while  it 
beliooves  students  and  lawyers  to  exam- 
ine and  carefully  weigh  their  just  force, 
and,  as  far  as  practicable,  to  define  their 
proper  limits,  tlie  advocate  should  never 
be  induced,  by  professional  zeal  or  a  less 
worthy  motive,  to  argue  against  their 
existence,  be  they  respectively  invoked, 
either  in  favor  of  or  against  the  ac- 
cused." Hofiinan's  Course  of  Legal 
Study,  vol.  i.  pp.  3G7,  3()8.  See  also  The 
(London)  Law  Magazine,  n.  8.  vol.  iv. 
p.  317. 


CHAP.  Xn.]  or  CONFESSIONS.  253 

of  this  kind  oj^  evidence,  and  sometimes  lead  to  its  rejection,  where, 
in  civil  actions,  it  would  have  been  received.^  The  weighty  obser- 
vation of  Mr.  Justice  Foster  is  also  to  be  kept  in  mind,  that  "  this 
evidence  is  not,  in  the  ordinar}^  course  of  things,  to  be  disproved 
by  that  sort  of  negative  evidence,  by  which  the  proof  of  plain  facts 
may  be,  and  often  is,  confronted." 

§  215.  If  deliberate,  of  great  weight.  Subject  to  these  cautions 
in  receiving  and  weighing  them,  it  is  generally  agreed  that  delib- 
erate confessions  of  guilt  are  among  the  most  effectual  proofs  in 
the  law.2  Their  value  depends  on  the  supposition  that  they  are 
deliberate  and  voluntary,  and  on  the  presumption  that  a  rational 
being  will  not  make  admissions  prejudicial  to  his  interest  and 
safety,  unless  when  urged  by  the  promptings  of  truth  and  con- 
science. Such  confessions,  so  made  by  a  prisoner,  to  any  person, 
at  any  moment  of  time,  and  at  any  place,  subsequent  to  the  per- 
petration of  the  crime,  and  previous  to  his  examination  before 
the  magistrate,  are  at  common  law  received  in  evidence  as  among 
proofs  of  guilt.3  Confessions,  too,  like  admissions,  may  be  inferred 
from  the  conduct  of  the  prisoner,  and  from  his  silent  acquiescence 
in  the  statements  of  others,  respecting  himself,  and  made  in  his 
presence  ;  provided  they  were  not  made  under  circumstances 
which  prevented  him  from  replying  to  them.'*  The  degree  of 
credit  due  to  them  is  to  be  estimated  by  the  jury  under  the  cir- 
cumstances of  each  case.^  Confessions  made  before  the  examin- 
ing magistrate,  or  during  imprisonment,  are  affected  by  additional 
considerations. 

§  216.  Classified.  Confessions  are  divided  into  two  classes, 
namely,  judicial  and  extrajudicial.  Judicial  confessions  are  those 
which  are  made  before  the  magistrate,  or  in  court,  in  the  due 
course  of  legal  proceedings ;  and  it  is  essential  that  they  be  made 

1  Foster's  Disc.  p.  243.  See  also  *  Supra,  §  197 ;  Eex  v.  Bartlett,  7  C. 
Lench  v.  Lench,  10  Ves.  518  ;  Smith  ;;.  &  P.  832 ;  Rex  r.  Sraithie,  5  C.  &  P.  332 ; 
Parnham,  3  Sumn.  438.  Rex  v.  Appleby,  3   Stark.  33 ;    Joy  on 

2  Dig.  lib.  42,  tit.  2,  De  Confess. ;  Van  Confessions,  &c.,  77-80 ;  Jones  v.  Mor- 
Leeuwen's   Comni.  b.  5,   ch.  21,  §  1 ;  2  rell,  1  Car.  &  Kir.  266. 

Poth.  on  Oh^.   (by  Evans),  App.  Num.  5  Supra,  ^2Q\;  Coon  r.  The  State,  13 

xvi.  §  13;  1  Gilb.  Evid.  by  LofEt,  216;  Sm.  &  M.  246;  McCann  v.  The  State,  Id. 

Hawk.  P.  C.b.  2,  o.  46,  §  3,  n.  (1);  Mor-  471.     [But  though  such  confessions  are 

timer  v.  Mortimer,  2  Hagg.  Con.   315;  to  be  received,  their  weight  is  wholly  a 

Harris  v.  Harris,  2  Hagg.  Eccl.  409.  question  for  the  jury ;  and  the  court  can- 

3  Lambe's  case,  2  Leach,  Cr.  Cas.  625,  not  be  required  to  charge  that  tliey  ought 
629,  per  Grose,  J. ;  Warickshall's  case,  to  be  disregarded,  if  not  corroborated 
1  Leach,  Cr.  Cas.  298;  McXally's  Evid.  Com.  v.  Sanborn,  116  Mass.  61.1 

12,47.  ^ 


254  LAW   OF  EVIDENCE.  [PAET  H. 

of  the  free  will  of  the  party,  and  with  full  and  perfect  knowledge 
of  the  nature  and  consequences  of  the  confession.  Of  this  kind 
are  the  preliminary  examinations,  taken  in  writing  by  the  magis- 
trate, pursuant  to  statutes  ;  and  the  plea  of  "  guilty  "  made  in 
open  court  to  an  indictment.  Either  of  these  is  sufficient  to  found 
a  conviction,  even  if  to  be  followed  by  sentence  of  death,  they 
being  deliberately  made,  under  the  deepest  solemnities,  with  the 
advice  of  counsel,  and  the  protecting  caution  and  oversight  of  the 
judge.  Such  was  the  rule  of  the  Roman  law :  "  Confessos  in  jure, 
pro  judicatis  haberi  placet ; "  and  it  may  be  deemed  a  rule  of  uni- 
versal jurisprudence.^  Extrajudicial  confessions  are  those  which 
are  made  by  the  party  elsewhere  than  before  a  magistrate,  or  in 
court ;  this  term  embracing  not  only  explicit  and  express  confes- 
sions of  crime,  but  all  those  admissions  of  the  accused  from  which 
guilt  may  be  implied?  All  confessions  of  this  kind  are  receiva- 
ble in  evidence,  being  proved  like  other  facts,  to  be  weighed  by 
the  jury. 

§  217.  Extrajudicial  confessions  uncorroborated.  Whether  extra- 
judicial confessions  uncorroborated  by  any  other  proof  of  the 
corpus  delicti  are  of  themselves  sufficient  to  found  a  con\action 
of  the  prisoner,  has  been  gravely  doubted.  In  the  Roman  law, 
such  naked  confessions  amounted  only  to  a  semiplena  probatio, 
■upon  which  alone  no  judgment  could  be  founded ;  and  at  most 
the  party  could  only  in  proper  cases  be  put  to  the  torture.  But 
if  voluntarily  made,  in  the  presence  of  the  injured  party,  or,  if 
reiterated  at  different  times  in  his  absence,  and  persisted  in,  they 
were  received  as  plenary  proof.^  In  each  of  the  English  cases 
usually  cited  in  favor  of  the  sufficiency  of  this  evidence,  there 
was  some  corroborating  circumstance.^      In  the  United  States, 

1  Cod.  lib.  7,  tit.  59;  1  Poth.  on  Obi.  349,  n.,  seems  to  be  an  exception ;  but  it 
part  4,  ch.  3,  §  1,  numb.  798 ;  Van  Leeu-  is  too  briefly  reported  to  be  relied  on.  It 
wen's  Comm.  b.  5,  c.  21,  §  2;  Mascard.  is  in  these  words:  "But  in  the  case  of 
I)e  Probat.  vol.  i.  Concl.  344  ;  supra,  John  Wheelinfj,  tried  before  Lord  Kcnyon, 
I  179.  at   the    Summer   Assizes   at    Salisbury, 

2  [From  conduct,  silence,  and  the  like.  1789,  it  was  determined  that  a  prisoner 
Drumright  v.  State,  29  Geo.  4.30 ;  People  may  be  convicted  on  his  own  confession, 
V.  McCrea,  32  Cal.  98  ;  mile,  §  199;  Law-  when  proved  by  legal  testimony,  though 
BOM  V.  State,  20  Ala.  6.5.  |  it  is  totally  uncorroborated  by  any  otiier 

8  N.  Everhard.  Concil.  xix.  8,  Ixxii.  5,  evidence."     But  in  Eldridge's  case,  Kuss. 

exxxi.   1,  clxv.  1,  2,  3,  clxxxvi.  2,  3,  11  ;  &  Ry.  440,  wlio  was  indicted  for  larceny 

Mascard.  I)e  Probat.  vol.  i.  Concl.  347,  of  a  horse,  the  beast  was  found  in  his 

349;  Van  Leeuwen's  Comm.  b.  6,  c.  21,  possession,  and  he  had  sold  it  for  £12, 

§§   4,   5 ;    B.   Carpzov.   Practic.    Reruni  after  asking  £35,  which  last  was  its  fair 

Criminal.  Pars  II.  Quaist.  n.  8.  value.     In  tiie  case  of  Falkner  and  Bond, 

*  Wiieeling's  case,  1  Leach,  Cr.  Cas.  Id.  481,  tlie  person  robbed  was  called  upon 


CHAP,  xn.] 


OF  CONFESSIONS. 


255 


the  prisoner's  confession,  when  the  corpus  delicti  is  not  otherwise 
proved,  has  been  held  insufficient  for  his  conviction;  and  this 
opinion  certainly  best  accords  with  the  humanity  of  the  criminal 
code,  and  with  the  great  degree  of  caution  applied  in  receiving 
and  weighing  the  evidence  of  confessions  in  other  cases  and  it 
seems  countenanced  by  approved  writers  on  this  branch  of  the 
law.^ 

§  218.  Confession  must  be  taken  as  a  whole.  In  the  proof  of 
confessions,  as  in  the  case  of  admissions  in  civil  cases,  the  whole 
of  what  the  prisoner  said  on  the  subject,  at  the  time  of  making 
the  confession,  should  be  taken  together.^  This  rule  is  the  dictate 
of  reason,  as  well  as  of  humanity.  The  prisoner  is  supposed  to 
have  stated  a  proposition  respecting  his  own  connection  with  the 
crime ;  but  it  is  not  reasonable  to  assume  that  the  entire  proposi- 
tion, with  all  its  limitations,  was  contained  in  one  sentence,  or  in 
any  particular  number  of  sentences,  excluding  all  other  parts  of  the 
converration.  As  in  other  cases  the  meaning  and  intent  of  the 
parties  are  collected  from  the  whole  writing  taken  together,  and 
all  the  instruments,  executed  at  one  time  by  the  parties,  and  re- 
lating to  the  same  matter,  are  equally  resorted  to  for  that  purpose ; 
so  here,  if  one  part  of  a  conversation  is  relied  on,  as  proof  of  a 
confession  of  the  crime,  the  prisoner  has  a  right  to  lay  before  the 
court  the  whole  of  what  was  said  in  that  conversation  ;  not  being 


his  recognizance,  and  it  was  proved  that 
one  of  the  prisoners  had  endeavored  to 
send  a  message  to  him  to  keep  him  from 
appearing.  In  White's  case,  Id.  508, 
there  was  strong  circumstantial  evi- 
dence, both  of  the  larceny  of  the  oats 
from  the  prosecutor's  stable,  and  of  tlie 
prisoner's  guilt ;  part  of  whicli  evidence 
was  also  given  in  Tippet's  case,  Id.  509, 
who  was  indicted  for  the  same  larceny ; 
and  there  was  the  additional  proof,  that 
he  was  an  under-hostler  in  the  same 
stable.  And  in  all  these  cases,  except 
tliat  of  Falkner  and  Bond,  tlie  confes- 
sions were  solemnly  made  before  the 
examining  magistrate,  and  taken  down 
in  due  form  of  law.  In  the  case  of 
Falkner  and  Bond,  the  confessions  were 
repeated,  once  to  the  officer  who  appre- 
hended them,  and  afterwards  on  hearing 
the  depositions  read  over,  which  con- 
tained the  charge.  In  Stone's  case, 
Dyer,  215,  pi.  50,  which  is  a  brief  note, 
it  does  not  appear  that  the  corpus  delicti 
was  not  otherwise  proved ;  on  the  con- 
trary, the  natural  inference  from  the 
report  is,  that  it  was.    In  Francia's  case, 


6  State  Tr.  58,  there  was  much  corrobo- 
rative evidence ;  but  the  prisoner  was 
acquitted ;  and  tlie  opinion  of  the  judges 
went  only  to  the  sufficiency  of  a  confes- 
sion solemnly  made,  upon  the  arraign- 
ment of  the  party  for  high  treason,  and 
this  only  upon  the  particular  language 
of  the  statutes  of  Edw.  VI.  See  Foster, 
Disc.  pp.  240-242. 

1  Guild's  case,  5  Halst.  103,  185  ; 
Long's  case,  1  Hayw.  524  (455) ;  Hawk. 
P.  C.  b.  2,  c.  46,  §  18  [Brown  v.  State, 
82  Miss.  4.33 ;  Bergen  v.  The  People,  17 
111.  426 ;  State  v.  German,  54  Mo.  626  ; 
Ruloff  V.  People,  18  N.  Y.  179  ;  State  v. 
Keeler,  28  Iowa,  553 ;  Smith  v.  Common- 
wealth, 21  Gratt.  (Va.)  809.  But  a  con- 
fession of  adultery  will  warrant  a  decree 
of  divorce.  Robinson  v.  Robinson,  1  Sw. 
&  Tr.  362]. 

2  The  evidence  must  be  confined  to 
his  confessions  in  regard  to  the  particular 
offence  of  which  he  is  indicted.  If  it 
relates  to  another  and  distinct  crime,  it 
is  inadmissible.  Reg.  v.  Butler,  2  Car.  & 
liir.  221. 


256  LAW   OF  EVIDENCE.  [PAP.T  H. 

confined  to  so  much  only  as  is  explanatory  of  the  part  already 
proved  against  him,  but  being  permitted  to  give  evidence  of  all 
that  was  said  upon  that  occasion,  relative  to  the  subject-matter 
in  issue.^  For,  as  has  been  already  observed  respecting  admis- 
sions,2  unless  the  whole  is  received  and  considered,  the  true 
meaning  and  import  of  the  part  which  is  good  evidence  against 
him  cannot  be  ascertained.  But  if,  after  the  whole  statement  of 
the  prisoner  is  given  in  evidence,  the  prosecutor  can  contradict 
any  part  of  it,  he  is  at  liberty  to  do  so  ;  and  then  the  whole  testi- 
mony is  left  to  the  jury  for  their  consideration,  precisely  as  in 
other  cases,  where  one  part  of  the  evidence  is  contradictory  to 
another.3  For  it  is  not  to  be  supposed  that  all  the  parts  of  a 
confession  are  entitled  to  equal  credit.  The  jury  may  believe 
that  part  which  charges  the  prisoner,  and  reject  that  which  is  in 
his  favor,  if  they  see  sufficient  grounds  for  so  doing.*  If  what 
he  said  in  his  own  favor  is  not  contradicted  by  evidence  offered 
by  the  prosecutor,  nor  improbable  in  itself,  it  will  naturally  be 
believed  by  the  jury ;  but  they  are  not  bound  to  give  weight  to 
it  on  that  account,  but  are  at  liberty  to  judge  of  it  like  other  evi- 
dence, by  all  the  circumstances  of  the  case.  And  if  the  confession 
implicates  other  persons  by  name,  yet  it  must  be  proved  as  it  was 
made,  not  omitting  the  names ;  but  the  judge  will  instruct  the 
jury,  that  it  is  not  evidence  against  any  but  the  prisoner  who 
made  it.^ 

§  219.  Must  be  voluntary.  Before  any  confession  can  be  re- 
ceived in  evidence  in  a  criminal  case,  it  must  be  shown  that  it 
was  voluntary.  The  course  of  practice  is,  to  inquire  of  the  wit- 
ness whether  the  prisoner  had  been  told  that  it  would  be  better 
for  him  to  confess,  or  worse  for  him  if  he  did  not  confess,  or 

1  Per  Lord  C.  J.  Abbott,  in  the  »  Rex  v.  Ilearne,  4  C.  &  P.  215  ;  Rex 
Queen's  case,  2  B.  &  B.  297,  208 ;  Rex  v.  v.  Clewes,  Id.  221,  per  Littledalo,  J.,  who 
Paine,  5  Mod.  165 ;  Hawlc.  P.  C.  b.  2,  said  he  liad  considered  thts  point  very 
c.  46,  §  5  ;  Rex  v.  Jones,  2  C.  &  P.  629;  mucli,  and  was  of  opinion  tliat  the  namca 
Rex  V.  Ilifrgins,  2  C.  &  P.  003  ;  Rex  v.  ougiit  not  to  be  left  out.  It  may  be 
Ilearne,  4  C.  &  P.  215 ;  Rex  v.  Clewes,  added,  tliat  the  credit  to  be  given  to  the 
Id.  221 ;  Rex  y.  Steptoe,  Id.  397;  Brown's  confession  may  depend  Jiiuch  on  tlie 
case,  9  Leigh,  633.  probability  that  the  persons  named  were 

2  Supra,  §  201,  and  cases  there  cited.  likely  to  engage  in  such  a  transaction. 
8  Rex  V.  Jones,  2  C.  &  P.  029.  See  also  Rex  v.  Fletcher,  Id.  250.  The 
*  Rex  V.  Higgins,  3  C.  &  P.  003;  Rex     point  was  decided  in  the  same  way  in 

V.  Steptoe.  4  C.  &  P.  397 ;  Rex  v.  Clewes,  Rex  v.  Walker,  0  C.  &  P.  175,  by  Gur- 

4  C.  &  P.  221  ;  Respublica  i;.  McCarty,  2  ncy,  B.,  who  said  it  had  been  much  con- 

Dall.  86,  88;  Bower  «.  The  State,  5  Miss,  sidered    by    tlie    judges.      Mr.    Justice 

364;  sK/iro,  §§  201,  215  [State  r.  Mahon,  Parke    thought    otherwise.      Barstow's 

32  Vt.  241j.  case,  Lewm's  Cr.  Cas.  110. 


CHAP.  Xn.]  OF  CONFESSIONS.  257 

whether  language  to  that  effect  had  been  addressed  to  liim.'^  "  A 
free  and  voluntary  confession,"  said  Eyre,  C.  B.,^  "  is  deserving 
of  the  highest  credit,  because  it  is  presumed  to  flow  from  the 
strongest  sense  of  guilt,  and  therefore  it  is  admitted  as  proof  of 
the  crime  to  which  it  refers ;  but  a  confession  forced  from  the 
mind  by  the  flattery  of  hope,  or  by  the  torture  of  fear,  comes  in 
sr»  questionable  a  shape,  when  it  is  to  be  considered  as  the  evi- 
dence of  guilt,  that  no  credit  ought  to  be  given  to  it;  and  there- 
fore it  is  rejected."  ^  The  material  inquiry,  therefore,  is,  whether 
the  confession  has  been  obtained  by  the  influence  of  hope  or  fear, 
applied  by  a  third  person  to  the  prisoner's  mind.  The  evidence 
to  this  point,  being  in  its  nature  preliminary,  is  addressed  to  the 
judge,  who  admits  the  proof  of  the  confession  to  the  jury,  or 
rejects  it,  as  he  may  or  may  not  find  it  to  have  been  drawn  from 
the  prisoner,  by  the  application  of  those  motives.^  This  matter 
resting  wholly  in  the  discretion  of  the  judge,  upon  all  the  circum- 
stances of  the  case,  it  is  difficult  to  lay  down  particular  rules,  a 
priori,  for  the  government  of  that  discretion.  The  rule  of  law, 
applicable  to  all  cases,  only  demands  that  the  confession  shall 
have  been  made  voluntarily,  without  the  appliances  of  hope  or  fear, 
by  any  other  person ;  and  whether  it  was  so  made  or  not  is  for 
him  to  determine,  upon  consideration  of  the  age,  situation,  and 
character  of  the  prisoner,  and  the  circumstances  under  which  it 

1  1  Phil,  on  Evid.  401 ;  2  East,  P.  C.  *  Boyd  v.  The  State,  2  Humphreys, 
659.  The  rule  excludes  not  only  direct  37 ;  Reg.  v.  Martin,  1  Armstr.  Macartn. 
confessions,  but  any  other  declaration  &  Ogle,  197;  The  State  ?».  Grant,  9  Shepl. 
tending  to  implicate  the  prisoner  in  the  171 ;  United  States  !'.  Nott,  1  McLean, 
crime  charged,  even  though,  in  terms,  it  499 ;  The  State  v.  Harman,  3  Harringt. 
is  an  accusation  of  another,  or  a  refusal  567.  [It  is  a  rule  of  law,  based  upon 
to  confess.  Rex  v.  Tyler,  1  C.  &  P.  129;  public  policy,  that  a  confession  is  inad- 
Rex  I'.  Enoch,  5  C.  &  P.  539.  See  fur-  missible  which  may  have  been  induced 
ther,  as  to  the  object  of  the  rule.  Rex  v.  by  promises  or  threats.  Whether  it  was 
Court,  7  C.  &  P.  486,  per  Littledale,  J. ;  in  fact  so  induced  is  not  open  to  inquiry. 
The  People  v.  Ward,  15  Wend.  231.  People  v.  Barrie,  Sup.  Ct.  Cal.,  1874, '8 

2  In  Warickshall's  case,  1  Leach's  Cr.  Pa.  L.  Rep.  222.  But  see  post,  §  220  a,n. 
Cas.  299;  McNally's  Evid.  47  ;  Knapp's  But  an  accomplice  may  be  convicted  on 
case,  10  Pick.  489,  490 ;  Chabbock's  case,  his  own  confession,  made  on  promise  of 
1  Mass.  144.  pardon  if  he  would  testify,  if  he  refuses 

3  In  Scotland,  this  distinction  be-  to  testify.  Post,  ^  old.  In  Kentucky,  a 
t^eeen  voluntary  confessions  and  those  confession,  made  upon  the  advice  of  a 
which  liave  been  extorted  by  fear  or  friend  to  confess  and  turn  State's  evi- 
elicited  by  promises  is  not  recognized,  dencc  as  the  only  chance  to  get  rid  of 
but  all  confessions,  obtained  in  eitiier  the  charge  was  held  admissible.  Young w. 
mode,  are  admissible  at  the  discretion  of  Com.,  8  Bush.  (Ky.),  306]  The  burden 
the  judge.  In  strong  cases  of  undue  of  proof,  to  show  that  an  inducement  has 
influence,  the  course  is  to  reject  them;  been  held  out,  or  improper  influence  used, 
otherwise,  the  credibility  of  the  evidence  is  on  the  prisoner.  Reg.  v.  Garner,  12  Jur. 
is  left  to  the  jury.     See  Alison's  Criminal  944  ;  2  C.  &  K.  920. 

Law  of  Scotland,  pp.  581,  582. 

VOL.    I.  17 


258 


LAW   OF  EVIDENCE. 


[pAUT  n. 


■was  made.^  Language  addressed  by  others,  and  sufficient  to  over- 
come the  mind  of  one,  may  have  no  effect  vipon  that  of  another ; 
a  consideration  whicli  may  serve  to  reconcile  some  contradictory 
decisions,  where  the  principal  facts  appear  similar  in  the  reports, 
but  the  lesser  circumstances,  though  often  very  material  in  such 
preliminary  inquiries,  are  omitted.  But  it  cannot  be  denied  that 
this  rule  has  been  sometimes  extended  quite  too  far,  and  been 
applied  to  cases  where  there  could  be  no  reason  to  suppose  that 
the  inducement  had  any  influence  upon  the  mind  of  the  prisoner.^ 
§  220.  niustrations  of  this  rule.  The  rule  under  consideration 
has  been  illustrated  in  a  variety  of  cases.  Thus,  where  the  prose- 
cutor said  to  the  prisoner,  "  Unless  you  give  me  a  more  satis- 
factory account,  I  will  take  you  before  a  magistrate,"  evidence 
of  the  confession  thereupon  made  was  rejected.^  It  was  also  re- 
jected, where  the  language  used  by  the  prosecutor  was,  "  If  you 
will  tell  me  where  my  goods  are,  I  will  be  favorable  to  you ; "  * 
where  the  constable  who  arrested  the  prisoner  said,  "  It  is  of  no 
use  for  you  to  deny  it,  for  there  are  the  man  and  boy  who  will 
swear  they  saw  you  do  it ;  "  ^  where  the  prosecutor  said,  "  He 
only  wanted  his  money,  and  if  the  prisoner  gave  him  that  he 

1  McNally's  Evid.  43 ;  Nute's  case,  6 
Petersdorf  s  Abr.  82 ;  Knapp's  case,  10 
Pick.  496  ;  United  States  V.  Nott,  1  Mc- 
Lean, 499 ;  siipm,  §  49 ;  Guild's  case,  5 
Halst.  175,  180 ;  Drew's  case,  8  C.  &  P. 
140  ;  Rex  v.  Tlioraas,  7  C.  &  P.  345 ;  Rex 
V.  Court,  Id.  486. 

2  (Tlie  cases  on  this  subject  have  re- 
cently been  very  fully  reviewed  in  Reg. 
V.  Baldry,  16  Jur.  599  [decided  in  the 
Court  of  Criminal  Appeal,  April  21, 
1852,  12  Eng.  Law  &  Eq.  590].  In  that 
case,  the  constable  who  apprehended  the 
prisoner,  having  told  him  the  nature  of 
the  charge,  said  :  "  He  need  not  say  any 
thing  to  criminate  himself  ;  wliat  he  did 
say  would  be  taken  down,  anil  used  as 
evidence  against  him  ;  "  and  the  prisoner 
thereupon  having  made  a  confession,  the 
court  held  the  confession  admissible. 
Parke,  B.,  said  :  "  By  the  law  of  England, 
in  order  to  render  a  confession  admissible 
in  evidence,  it  must  be  jierfectly  volun- 
tary ;  and  there  is  no  doubt  tiiat  any 
inducement,  in  the  nature  of  a  promise 
or  of  a  threat,  held  out  by  a  person  in 
authority,  vitiates  a  confession.  The 
decisions  to  that  effect  have  gone  a  long 
way.  Whether  it  would  not  have  been 
better  to  have  left  the  whole  to  go  to  the 
jury,  it  is  now  too  late  to  inquire  ;  but  I 
tliiuk  there  has  been  too  much  tenderness 


towards  prisoners  in  this  matter.  I  con- 
fess that  I  cannot  look  at  the  decisions 
without  some  shame,  when  I  consider 
what  objections  have  prevailed  to  pre- 
vent the  reception  of  confessions  in  evi- 
dence ;  and  I  agree  with  the  observation, 
that  the  rule  has  been  extended  quite  too 
far,  and  that  justice  and  common  sense 
luive  too  frequently  been  sacrificed  at 
the  shrine  of  mercy."  Lord  Campbell, 
C.  J.,  stated  the  rule  to  be,  tliat  "  if  there 
be  any  worldly  advantage  held  out,  or 
any  harm  threatened,  the  confession 
must  be  excluded  ;  "  in  wliich  the  other 
judge  concurred.)  [In  State  v.  Grant, 
22  Maine,  171,  the  general  rule  is  thus 
stated:  "To  exclude  tiie  confessif)n,  there 
must  appear  to  have  been  held  out  some 
fear  of  personal  injury,  or  hope  of  per- 
sonal benefit,  of  a  temporal  nature ; " 
and  this  rule  was  said  to  be  "  well  ex- 
pressed "  in  Commonwealth  v.  Morey,  6 
Cush.  461,  46.}.  See  also  Spears  v.  Ohio, 
2  Ohio,  N.  s.  58-3.  See  also  Fife  v.  Com- 
monwealtl),  29  Penn.  St.  429.] 

s  Thompson's  case,  1  Leach's  Cr.  Cas. 
325.  See  also  Commonwealth  v.  Har- 
man,  4  Barr,  269;  The  State  d.  Cowan, 
7  Ired.  2.)9. 

*  Cass's  case,  1  Leach's  Cr.  Cas.  328, 
n. ;  Boyd  v.  Tiie  State,  2  Humph.  37. 

5  liex  V.  Mills,  0  C.  &  P.  140. 


CHAP.  XII.] 


OF   CONFESSIONS. 


259 


might  go  to  the  devil,  if  he  pleased ; "  ^  and  where  he  said 
he  should  be  obliged  to  the  prisoner,  if  he  would  tell  all  he  knew 
about  it,  adding,  "If  j^ou  will  not,  of  coiu'se  we  can  do  nothing," 
meaning  nothing  for  the  prisoner.^  So  where  the  prisoner's 
superior  officer  in  the  police  said  to  him,  "  Now  be  cautious  in 
the  answers  you  giA'e  me  to  the  questions  I  am  going  to  put  to 
you  about  this  watch ; "  the  confession  was  held  inadmissible.^ 
There  is  more  difficulty  in  ascertaining  what  is  such  a  threat^  as 
will  exclude  a  confession ;  though  the  principle  is  equally  clear, 
that  a  confession  induced  by  threats  is  not  voluntary,  and  there- 
fore cannot  be  received.* 

§  220  a.  Same  subject.     It  is  extremely  difficult  to  reconcile 


1  Rex  V.  Jones,  Russ.  &  Ry.  152.  See 
also  Griffin's  case,  Id.  151. 

^  Rex  V.  Patridge,  7  C.  &  P.  651.  See 
also  Guild's  case,  5  Halst.  163. 

3  Reg.  V.  Fleming,  1  Araist.  Mac- 
artn.  &  Ogle,  330.  But  where  the  exam- 
ining magistrate  said  to  the  prisoner, 
"  Be  sure  you  say  nothing  but  the  truth, 
or  it  will  be  taken  against  you,  and  may 
be  given  in  evidence  against  you  at  your 
trial,"  the  statement  thereupon  made  was 
held  admissible.  Reg.  v.  Hohnes,  1  C.  & 
K.  248;  s.  p.  Reg.  v.  Atwood,  5  Cox, 
C.  C.  322.  [One  under  arrest  for  stealing 
was  visited  in  jail  by  the  prosecutor,  who 
said  to  him,  that,  if  he  wished  for  any 
conversation,  he  could  have  a  chance;  the 
prisoner  made  no  reply  for  a  minute  or 
two ;  the  prosecutor  then  told  the  pris- 
oner he  thought  it  was  better  for  all 
concerned  in  all  cases  for  the  guilty  to 
confess;  the  prisoner  then  said  he  sup- 
posed he  should  have  to  stay  there 
whether  he  confessed  or  not ;  the  prose- 
cutor replied  that  he  supposed  he  would, 
and  in  his  opinion  it  would  make  no  dif- 
ference as  to  legal  proceedings,  and  that 
it  was  considered  honorable  in  all  cases 
if  a  person  was  guilty  to  confess.  Imme- 
diately after  this,  the  prisoner  made  con- 
fession, and  it  was  held  admissible. 
Commonwealth  v.  Morey,  1  Gray,  461.] 

*  Thornton's  case,  1  Mood.  Cr.  Cas. 
27;  Long's  case,  6  C.  &  P.  179;  Roscoe's 
Crim.  Evid.  31;  Dillon's  case,  4  Dall. 
116.  Where  the  prisoner's  superior  in 
the  post-office  said  to  the  prisoner's  wife, 
while  her  husband  was  in  custody  for 
opening  and  detaining  a  letter,  "  Do  not 
be  frightened  ;  I  hope  notliing  will  hap- 
pen to  your  husband  beyond  the  loss  of 
his  situation;"  the  prisoner's  subsequent 
confession  was  rejected,  it  appearing  that 
the  wife  might  have  communicated  this 
to  the  prisoner.  Reg.  v.  Harding,  1 
Armst.  Macartn.  &  Ogle,  340.     Where  a 


girl,  thirteen  years  old,  was  charged  with 
administering  poison  to  her  mistress,  with 
intent  to  murder ;  and  the  surgeon  in 
attendance  had  told  her,  "  it  would  be 
better  for  her  to  speak  the  truth ; "  it 
was  held  that  her  confession,  thereupon 
made,  was  not  admissible.  Reg.  v.  Gar- 
ner, 12  Jur.  943 ;  1  Denison's  Cr.  Cas. 
329.  [A  confession  made  after  the  in- 
ducement of  a  threat  held  out  by  A 
when  B  was  present  was  held  to  be  the 
same  thing  as  if  B  had  used  the  threat  ; 
and  as  B  was  the  person  likeh'  to  prose- 
cute (he  being  tlie  owner  of  the  property 
in  connection  with  which  the  offence 
was  committed),  he  was  a  person  in 
authority,  so  that  the  confession  made 
after  the  inducement  held  out  in  his  pres- 
ence was  not  admissible  in  evidence. 
Reg.  V.  Luckhurst,  22  Eng.  Law  &  Eq. 
604.  But  a  confession,  in  answer  to  the 
statement  of  tlie  officer,  "  I  must  know 
more  about  it,"  was  held  competent. 
Keating,  J.  (after  consulting  with  Quain, 
J.),  observed:  "In  my  time,  it  used  to 
be  held  that  a  mere  caution  given  by 
a  person  in  authority  would  exclude  an 
admission;  but  since  then  there  has  been 
a  return  to  doctrines  more  in  accordance 
with  the  common-sense  views.  The  real 
question  is,  whether  there  has  been  any 
threat  or  promise  of  such  a  nature  that 
the  prisoner  would  be  likely  to  tell  an 
untrutli  from  fear  of  the  threat,  or  hope 
of  profit  from  the  promise."  Reg.  v. 
Reason,  12  Cox's  Cr.  Cas.  228.  See  also 
Reg.  V.  Jones,  Id.  241 ;  Reg.  v.  Jarvis, 
1  L.  R.  C.  C.  96.  And  stripping  a  boy 
thirteen  or  fourteen  years  old,  by  the 
officers,  who  had  arrested  him  without  a 
warrant,  putting  hiui  in  a  cell,  and  other- 
wise handling  him  rather  roughly,  does 
not  amount  to  a  threat  so  as  to  render 
his  confessions  inadmissible.  Com.  v 
Coffee,  108  Mass.  285.] 


260  LAW   OF  EVIDENCE.  [PAET  11. 

these  and  similar  cases  with  the  spirit  of  the  rule,  as  expounded 
by  Chief  Baron  Eyre,  whose  language  is  quoted  in  a  preceding 
section.  The  difference  is  between  confessions  made  voluntarily, 
and  those  ^'•forced  from  the  mind  by  the  flattery  of  hope,  or  by 
the  torture  of  fear."  If  the  party  has  made  his  own  calculation 
of  the  advantages  to  be  derived  from  confessing,  and  thereupon 
has  confessed  the  crime,  there  is  no  reason  to  say  that  it  is  not  a 
voluntary  confession.  It  seems  that,  in  order  to  exclude  a  con- 
fession, the  motive  of  hope  or  fear  must  be  directly  applied  by  a 
third  person,  and  must  be  sufficient,  in  the  judgment  of  the  court, 
so  far  to  overcome  the  mind  of  the  prisoner,  as  to  render  the  con- 
fession unworthy  of  credit.^ 

§  221.  Same  subject.  But  though  promises  or  threats  have 
been-  used,  yet  if  it  appears  to  the  satisfaction  of  the  judge  that 
their  mjiuence  tvas  totalis/  done  away  before  the  confession  was 
made,  the  evidence  will  be  received.  Thus,  where  a  magistrate, 
who  was  also  a  clergyman,  told  the  prisoner  that  if  he  was  not  the 
man  who  struck  the  fatal  blow,  and  would  disclose  all  he  knew 
respecting  the  murder,  he  would  use  all  his  endeavors  and  influ- 
ence to  prevent  any  ill  consequences  from  falling  on  him ;  and 
he  accordingly  wrote  to  the  Secretary  of  State,  and  received  an 
answer,  that  mercy  could  not  be  extended  to  the  prisoner ;  which 
answer  he  communicated  to  the  prisoner,  who  afterwards  made  a 
confession  to  the  coroner ;  it  was  held  that  the  confession  was 
clearly  voluntary,  and  as  such  it  was  admitted.^  So,  where  the 
prisoner  had  been  induced,  by  promises  of  favor,  to  make  a  con- 
fession, which  was  for  that  cause  excluded,  but  about  five  months 
afterwards,  and  after  having  been  solemnly  warned  by  two  magis- 
trates that  he  must  expect  death  and  prepare  to  meet  it,  he  again 
made  a  full  confession,  this  latter  confession  was  admitted  in 
evidence.^    In  this  case,  upon  much  consideration,  the  rule  was 

1  See  Rep.  v.  Baldry,  16  Jur.  599,  12  him  in  any  worse  condition,  and  he  had 
Eng.  Law  &  Eq.  5!)0,  where  this  sub-  better  tell  the  truth  at  all  times,  his  con- 
ject  was  very  fully  discussed,  and  the  fession  is  still  admissible.  Fnuts  v.  The 
true  principle  recognized,  as  above  quoted  State,  8  Oliio,  n.  s.  98.  And  when  the 
from  Cii.  liaron  Eyre  [and  Hex  v.  Har-  prisoner  was  told  that  it  was  of  no  use 
ris,  1  Cox,  lOtj,  licg.  V.  Drew,  8  C.  &  to  duny  his  guilt,  tliat  the  gold  pieces 
r.  140,  and  Hex  r.  Morton,  2  M.  &  R.  514,  were  found  where  he  passed  tliem,  and 
are  overruh-il,  as  discreditable  to  the  he  iiad  better  own  up,  it  was  held  not  to 
law.  Some  of  the  American  States  have  amount  to  a  threat,  but  only  to  an  in- 
relaxed  the  rule  of  tlie  former  English  ducement,  and  so  was  admissible  under 
practice  excluding  confessions,  upon  the  the  statute  of  Indiana.  State  v.  Free- 
slightest     suspicion    of    any     influence  man,  12  Ind.  100]. 

brought  to  bear  upon  the  mind  of  tlie  ^  jj^x  v.  Clewes,  4  C.  &  P.  221.     [See 

accused.     Hence,  if  tlie  prisoner  is  told  State  v.  Vaigneur,  6  Rich.  391.] 

that  confes£^oa  of  guilt  could  not  put  ^  Guild's  case,  5  ILilst.  103,  168. 


CHAP,  xn.] 


OF   CONFESSIONS. 


261 


Btated  to  be,  that,  although  an  original  confession  may  have  been 
obtained  by  improper  means,  yet  subsequent  confessions  of  the 
same  or  of  like  facts  may  be  admitted,  if  the  court  believes,  from 
the  length  of  time  intervening,  or  from  proper  warning  of  the 
consequences  of  confession,  or  from  other  circumstances,  that  the 
delusive  hopes  or  fears,  under  the  influence  of  which  the  original 
confession  was  obtained,  were  entirely  dispelled.^  In  the  absence 
of  any  such  circumstances,  the  influence  of  the  motives  proved 
to  Jiave  been  offered  will  be  presumed  to  continue,  and  to  have 
produced  the  confession,  unless  the  contrary  is  shown  by  clear 
evidence ;  and  the  confession  will  therefore  be  rejected.^  Ac- 
cordingly, where  an  inducement  has  been  held  out  by  an  officer, 
or  a  prosecutor,  but  the  prisoner  is  subsequently  warned  by  the 
magistrate,  that  what  he  may  say  will  be  evidence  against  him- 
self, or  that  a  confession  will  be  of  no  benefit  to  liim,  or  he  is 
simply  cautioned  by  the  magistrate  not  to  say  any  thing  against 
himself,  his  confession,  afterwards  made,  will  be  received  as  a 
voluntary  confession.^ 

§222.  Inducements.  Authority.  In  regard  to  the  person  hi/ whom 
the  inducements  were  offered,  it  is  very  clear,  that  if  they  were 
offered  by  the  prosecutor,*  or  by  his  wife,  the  prisoner  being  liis 


1  Guild's  case,  5  Halst.  180.  But  other- 
wise the  evidence  of  a  subsequent  con- 
fession, made  on  the  basis  of  a  prior  one 
unduly  obtained,  will  be  rejected.  Com- 
monwealth i\  Harman,  4  Barr,  269;  The 
State  V.  Roberts,  1  Dev.  259. 

2  Roberts'  case,  1  Dev.  259,  264; 
Maynell's  case,  2  Lewin's  Cr.  Cas.  122; 
Sherrington's  case.  Id,  123;  Rex  v. 
Cooper,  5  C.  &  P.  535. 

3  Rex  V.  Howes,  6  C.  &  P.  404 ;  Rex 
V.  Richards,  5  C.  &  P.  318  ;  Nute's  case, 
2  Russ.  on  Crimes,  648 ;  Joy  on  the  Ad- 
missibility of  Confessions,  pp.  27,  28, 
69-75 ;  Rex  v.  Bryan,  Jelib's  Cr.  Cas. 
157.  If  the  inducement  was  held  out  by 
a  person  of  superior  authority,  and  the 
confession  was  afterwards  made  to  one 
of  inferior  authority,  as  a  turnkey,  it 
seems  inadmissible,  unless  the  prisoner 
was  first  cautioned  by  the  latter.  Rex 
V.  Cooper,  5  C.  &  P.  535.  In  the  United 
States  V.  Chapman,  4  Am.  Law  Jour. 
N.  s.  440,  the  prisoner  had  made  a  con- 
fession to  the  high  constable  who  had 
him  under  arrest,  upon  express  promises 
of  favor  by  the  officer.  After  being  de- 
tained forty-four  hours  in  the  watch- 
house,  he  was  brought  before  the  ma3-or, 
in  the  same  apartment  where  he  had  made 


the  confession,  and  his  examination  was 
taken  in  presence  of  the  same  hicjh  constable. 
Tlie  mayor  knew  nothing  of  the  previ- 
ous confession  ;  and  gave  the  prisoner 
no  more  than  the  usual  caution  not  to 
answer  any  questions  unless  he  pleased, 
and  telling  him  that  he  was  not  bound  to 
criminate  himself.  In  this  examination, 
the  same  confession  was  repeated;  but 
the  judge  rejected  it  as  inadmissible,  be- 
ing of  opinion  that,  being  made  in  the 
same  room  where  it  was  first  made,  and 
under  the  eye  of  the  same  police-officer 
to  whom  it  was  made,  there  was  "  strong 
reason  to  infer  that  the  last  examination 
was  but  intended  to  put  in  due  form  of 
law  the  first  confession,  and  tliat  the 
promise  of  favor  continued  as  first  made." 
The  legal  presumption,  he  said,  was,  that 
the  influence,  which  induced  the  confes- 
sion to  the  officer,  continued  wlien  it  was 
made  to  the  mayor;  and  this  presump- 
tion it  was  the  duty  of  the  prosecutor  to 
repel. 

*  Thompson's  case,  1  Leach's  Cr.  Cas. 
325;  Cass's  case.  Id.  328,  n. ;  Rex  v. 
Jones,  Russ.  &  R.  152 ;  Rex  v.  Griffin,  Id. 
151;  Chabbock's  case,  1  Mass.  144;  Rex 
V.  Gibbons,  1  C.  &  P.  97,  n.  {a)  ;  Rex 
V.  Partridge,   7  C.   &  P.   551;   Roberts' 


262 


LAW   OF   EVIDENCE. 


[PABT  n. 


servant,^  or  by  an  officer  having  the  prisoner  in  cnstody,^  or  by  a 
magistrate,^  or,  indeed,  by  any  one  having  authority  over  him,  or 
over  the  prosecution  itself,^  or  by  a  private  person  in  the  presence  of 
one  in  authority,^  —  the  confession  will  not  be  deemed  voluntary, 
and  will  be  rejected.  The  authority,  known  to  be  possessed  by 
those  persons,  may  well  be  supposed  both  to  animate  the  prisoner's 
hopes  of  favor,  on  the  one  hand,  and  on  the  other  to  inspire  him 
with  awe,  and  in  some  degree  to  overcome  the  powers  of  hia 
mind.  It  has  been  argued,  that  a  confession  made  upon  the 
promises  or  threats  of  a  person,  erroneously  believed  by  the 
prisoner  to  possess  such  authority,  the  person  assuming  to  act  in 
the  capacity  of  an  officer  or  magistrate,  ought,  upon  the  same 
principle,  to  be  excluded.  The  principle  itself  would  seem  to 
require  such  exclusion ;  but  the  point  is  not  known  to  have  re- 
ceived any  judicial  consideration. 

§  223.  Same  subject.  But  whether  a  confession,  made  to  a  'per- 
son who  has  710  authority,  upon  an  inducement  held  out  by  that 
person,  is  receivable,  is  a  question  upon  which  learned  judges  are 
known  to  entertain  opposite  opinions.^     In  one  case,  it  was  laid 


case,  1  Dev.  259 ;  Rex  v.  Jenkins,  Russ. 
&  Ky.  402;  Reg.  v.  Hearn,  1  Car.  & 
Marsh.  109.  See  also  Phil.  &  Am.  on 
Evid.  430,  4:31. 

1  Rex  V.  Upclmrch,  1  Mood.  Cr.  Cas. 
46-5;  Reg.  v.  llewett,  1  Car.  &  Marshm. 
5;]4 ;  Rex  v.  Taylor,  8  C.  &  P.  733.  In 
Rex  V.  Simpson,  1  Mood.  Cr.  Cas.  410, 
tlie  inducements  were  held  out  by  the. 
mother-in-law  of  tiie  prosecutor,  in  his 
house,  and  in  the  presence  of  his  wife, 
who  was  very  deaf ;  and  the  confessions 
thus  obtained  were  held  inadmissil)le. 
See  Mr.  .Joy's  Treatise  on  the  Admissi- 
bility of  Confessions,  pp.  5-10. 

2  Rex  V.  Swatkins,4  C.  &  P.  548  ;  Rex 
V.  Mills,  6  C.  &  P.  14(5 ;  Rex  v.  Sextons, 
6  Petersd.  Abr.  84;  Rex  v.  Sliepherd,  7 
C.  &  P.  679.  See  also  Rex  v.  Thornton, 
1  Mood.  Cr.  Cas.  27.  But  see  Common- 
wealth V.  Mosler,  4  Barr,  2(54. 

3  Rudd's  case,  1  Leach's  Cr.  Cas.  136; 
Guild's  case,  5  Ilalst.  168. 

*  Rex  V.  Parratt,  4  C.  &  P.  670,  which 
was  a  confes.nion  by  a  sailor  to  his  cap- 
tain, who  tiireatened  him  with  prison,  on 
a  charge  of  stealing  a  watch.  Rex  v. 
Enoch,  6  C.  &  P.  630,  was  a  confession 
made  to  a  woman,  in  wiiose  custody  the 
prisoner,  who  was  a  female,  ha<l  been  left 
by  tiie  officer.  The  official  character 
of  the  person  to  whom  tlie  confession  is 
made  does  not  alTect  its  admissibility, 
provided  no  inducements  were  employed. 


Joy  on  Confessions,  &c.,  pp.  59-61 ;  Rex 
V.  Gibbons,  1  C.  &  P.  97,  note  (a); 
Knapp's  case,  10  Pick.  477 ;  Mosler's 
case,  6  Penn.  Law  Journ.  90 ;  4  Barr, 
2t}4. 

s  Roberts'  case,  1  Dev.  259 ;  Rex  v. 
Pountney,  7  C.  &  P.  302 ;  Reg.  v.  Laugher, 
2  C.  &  K.  225  [Reg.  v.  Luckhurst,  22  Eng. 
Law  &  Eq.  604.  A  female  prisoner,  in 
custody  on  a  charge  of  murder,  desiring 
to  go  to  the  water-closet,  was  sent  there 
by  tiie  police,  witii  the  landlady  of  the  inn, 
an  aciquaintanCe  of  tlie  i)risoner,  wiio  was 
imi)liedly  autliorized  to  prevent  lier  es- 
cape. While  there  togetiier,  the  landlady 
said  to  the  prisoner,  "  How  came  you  to  do 
itl  "  whereupon  the  prisoner  made  a  con- 
fession, which  was  held  admissible  in  evi- 
dence, as  not  induced  by  any  hope  or  fear 
caused  by  a  person  in  authority.  Reg. 
V.  Vernon,  12  Cox's  Cr.  Cas.  153.  Two 
little  boys  in  custody,  the  mother  of  one 
of  them  saying,  "  You  had  better,  as  good 
boys,  tell  tlie  truth,"  the  officer  being 
also  jiresent,  thereupon  confessed,  and 
the  confession  was  held  admissible ; 
Kelley,  C.  B.,  observing  that  "  the  cases 
excluding  confessions  on  the  ground  of 
unlawful  inducement  have  gone  too  far 
for  tlie  protection  of  guilt."  Reg.  o. 
l{eeve,  Ct.  of  Cr.  Aji.,  12  Cox's  Cr.  Cas. 
179.  See  also  Mr.  Greene's  note  to  this 
case.     1  Cr.  Law  Rep.  398]. 

^  So  stated  by  Parke,  B.,  in  Rex  v. 


CHAP.  Xn.]  OF   CONFESSIONS.  263 

down  as  a  settled  rule,  that  any  person  telling  a  prisoner  that  it 
would  be  better  for  him  to  confess,  will  always  exclude  any  con- 
fession made  to  that  person.^  And  tliis  rule  has  been  applied  in 
a  variety  of  cases,  both  early  and  more  recent.^  On  the  other 
hand,  it  has  been  held,  that  a  promise  made  by  an  indifferent 
person,  who  interfered  officiously,  without  any  kind  of  authority, 
and  promised,  without  the  means  of  performance,  can  scarcely  be 
deemed  sufficient  to  produce  any  effect,  even  on  the  weakest 
mind,  as  an  inducement  to  confess ;  and,  accordingly,  confessions 
made  under  such  circumstances  have  been  admitted  in  evidence,^ 
The  difficulty  experienced  in  this  matter  seems  to  have  arisen 
from  the  endeavor  to  define  and  settle,  as  a  rule  of  law,  the  facts 
and  circumstances  which  shall  be  deemed,  in  all  cases,  to  have 
influenced  the  mind  of  the  prisoner,  in  making  the  confession. 
In  regard  to  persons  in  authority,  there  is  not  much  room  to 
doubt.  Public  policy,  also,  requires  the  exclusion  of  confessions, 
obtained  by  means  of  inducements  held  out  by  such  persons. 
Yet  even  here,  the  age,  experience,  intelligence,  and  constitution, 
both  physical  and  mental,  of  prisoners,  are  so  various,  and  the 
power  of  performance  so  different,  in  the  different  persons  prom- 
ising, and  under  different  cu'cumstances  of  the  prosecution,  that 
the  rule  will  necessarily  sometimes  fail  of  meeting  the  truth  of 
the  case.  But  as  it  is  thought  to  succeed  in  a  large  majority  of 
instances,  it  is  wisely  adopted  as  a  rule  of  law  applicable  to  them 
all.  Promises  and  threats  by  private  persons,  however,  not 
being  found  so  uniform  in  their  operation,  perhaps  may,  with 
more  propriety,  be  treated  as  mixed  questions  of  law  and  fact ; 

Spencer,  7  C.  &  P.  776.     See  also  Rex  v.  Rex  v.  Walkley,  6  C.  &  P.  175  ;  Guild's 

Pountney,    Id.   302,   per  Alderson,   B. ;  case,  5  Halst.  163  ;  Knapp's  case,  9  Pick. 

Rex  V.  Row,  Russ.  &  Ry.  153,  per  Cham-  496,  500-510  ;  Rex  v.  Thomas,  6  C.  &  P. 

bre,  J.     [Shaw,  C.  J.,  in  giving  the  opin-  633. 

ion  of  tlie  court   in   Commonwealth   v.  ^  Rex  v.  Hardwick,  6  Petersd,  Abr. 

Morey,  1  Gray,  461,463,  said  :  "  Of  course,  84,  per  Wood,  B. ;  Rex  v.  Taylor,  8  C.  & 

Buoh  inducement  must  be  held  out  to  the  P.  734.  See,  accordingly.  Rex  v.  Gibbons, 

accused  by  some  one  who  has,  or  who  is  1  C.  &  P.  97  ;  Rex  v.  Tyler,  Id.  VZQ  ;  Rex 

supposed  by  the  accused  to  have,  some  v.  Lingate,  6  Petersd.  Abr.  84;  2  Lewin's 

power  or  authority  to  assure  to  him  the  Cr.    Cas.   125,   n.     In    Rex    v.   Wild,    1 

promised  good,  or  cause  or  influence  the  Mood.  Cr.  Cas.  452,  the  prisoner,  a  boy 

threatened  injury."    And  to  support  this,  under  fourteen,  was  required  to  kneel, 

he    cites    Commonwealth   v.   Taylor,   5  and  was   solemnly   adjured   to   tell   the 

Cush.  606.]  truth.     The  conviction,  upon  his  confes- 

1  Rex  V.  Dunn,  4  C.  &  P.  543,  per  sion  thus  made,  was  lield  right,  but  the 
Bosanquet,  J. ;  Rex  v.  Slaughter,  8  C.  &  mode  of  obtaining  the  confession  was 
P.  734.  very  much  disapproved.     Rex   v.  Row, 

2  See,  accordingly,  Rex  v.  Kingston,  Russ.  &  Ry.  153  [Commonwealth  v. 
4  0.  &  P.  387  ;  Rex  v.  Clewes,  Id.  231;  Howe,  2  Allen,  153]. 


264 


LAW   OF   EVIDENCE. 


[pAET  n. 


the  principle  of  law,  that  the  confession  must  be  voluntary,  being 
strictly  adhered  to,  and  the  question,  whether  the  promises  or 
tlireats  of  the  private  individuals  who  employed  them,  were  suffi- 
cient to  overcome  the  mind  of  the  prisoner,  being  left  to  the  dis- 
cretion of  the  judge,  under  all  the  circumstances  of  the  case.^ 


1  In  Scotland,  it  is  left  to  the  jury. 
See  Alison's  Criminal  Law  of  Scotland, 
pp.  681,  58-2 ;  supra,  §  210,  n.  Mr.  Joy 
maintains  the  ungiudijied  proposition, 
that  "a  confession  is  admissible  in  evi- 
dence, altlioiigh  an  inducement  is  held 
out,  if  such  inducement  proceeds  from  a 
person  not  in  autliority  over  the  pris- 
oner; "and  it  is  strongly  supported  by 
the  authorities  he  cites,  whicli  are  also 
cited  in  the  notes  to  this  section.  See 
Joy  on  the  Admissibility  of  Confessions, 
sec.  2,  pp.  23-33.  His  work  has  been 
published  since  the  first  edition  of  this 
book ;  but,  upon  a  deliberate  revision  of 
the  point,  I  have  concluded  to  leave  it 
where  the  learned  judges  have  stated  it 
to  stand,  as  one  on  which  they  were  di- 
vided in  opinion. 

In  a  recent  case,  in  England,  the  rule 
stated  in  the  text  is  admitted  to  be  the 
best  rule,  though  the  learned  judges  felt 
themselves  restricted  from  adopting  it  by 
reason  of  previous  decisions.  It  was  a 
prosecution  against  a  female  servant,  for 
concealing  tlie  death  of  her  bastard 
child ;  and  the  question  was  upon  the 
admissibility  of  a  confession  made  to  her 
mistress,  who  told  her  "  she  had  better 
speak  the  truth."  The  judgment  of  the 
court  was  delivered  by  Parke,  B.,  as  fol- 
lows :  "  The  cases  on  this  subject  have 
gone  quite  far  enough,  and  ouglit  not  to 
be  extended.  It  is  admitted  tliat  the  con- 
fessions ought  to  be  excluded,  unless  vol- 
untary, and  ihe  JHchje,  not  the  jury,  ought 
to  determine  whetlier  they  are  so.  One 
element  in  the  consideration  of  the 
question  as  to  their  being  volimtary  is, 
whetlier  the  threat  or  inducement  was 
such  as  to  be  likely  to  influence  tiie  pris- 
oner. I'erliaps  it  would  have  been  better 
to  have  held  (when  it  was  determined 
that  the  jiiclf/e  was  to  decide  whetlier  the 
confession  was  voluntary)  that  in  all 
eases  he  was  to  decide  tliat  point  upon 
liis  own  view  of  (ill  the  circumstances, 
including  the  nature  of  the  tiireat  or  in- 
ducement, and  the  cliaracter  of  the  per- 
son iiolding  it  out,  togetiier;  not  neces- 
sarily excluding  the  confes-nion  on  account 
of  the  cliaracter  of  tlic  pers<m  Iiolding  out 
the  inducement  or  threat.  IJut  a  rule  has 
been  laid  down  in  diHiTcnt  preceilents  by 
wiiicii  we  are  bound,  and  that  is,  if  the 
threat  or  inducement  is  held  out,  actually 


or  constructively,  by  a  person  in  authority/, 
it  cannot  be  received,  liowever  slight  the 
threat  or  inducement ;  and  the  prosecutor, 
magistrate,  or  constable  is  such  a  person  ; 
and  so  the  master  or  mistress  may  be.  If 
not  held  out  by  one  in  authority,  they  are 
clearly  admissible.  Tlie  authorities  are 
collected  in  Mr.  Joy's  very  able  treatise 
on  Confessions  and  Challenges,  p.  23. 
But,  in  referring  to  the  cases  where  the 
master  and  rnislress  have  been  held  to  be 
persons  in  authority,  it  is  only  when  the 
offence  concerns  the  master  or  mistress 
that  their  holding  out  the  threat  or  prom- 
ise renders  the  confession  inadmissible. 
In  Rex  V.  Upchurch  (Uy.  &  M.  865),  the 
offence  was  arson  of  the  dwelling  house, 
in  the  management  of  which  the  mistress 
took  a  part.  Eeg.  v.  Taylor  (8  Car.  &  P. 
733)  is  to  the  like  effect.  So,  Rex  v.  Car- 
rington  (Id.  109)  and  Rex  v.  Howell 
(Id.  534).  So,  where  the  threat  was  used 
by  the  master  of  a  ship  to  one  of  the  crew, 
and  the  offence  committed  on  board  the 
sliip  by  one  of  the  crew  towards  another; 
and  in  that  case  also  the  master  of  the 
ship  threatened  to  apprehend  him  ;  and 
the  offence  being  a  felony,  and  a  felony 
actually  committed,  would  have  a  power 
to  do  so,  on  reasonable  suspicion  tliat  the 
prisoner  was  guilty.  In  Rex  r.  Warring- 
liam,  tried  before  me  at  tlie  Surrey 
Spring  Assizes,  1851,  the  confession  was 
in  consequence  of  what  was  said  by  the 
mistress  of  the  prisoner,  she  being  in  the 
habit  of  managing  the  shop,  and  the  of- 
fence being  larceny  from  the  shop.  This 
appears  from  my  note.  In  the  present 
case,  the  offence  of  thcprisonerin  killing 
her  cliild,  or  concealing  its  dead  body, 
was  in  no  way  an  offence  against  the  mis- 
tress of  the  liouse.  She  was  not  the  ]iros- 
ecutrix  then,  and  there  was  no  probabil- 
ity of  herself  or  the  husband  lieing  the 
prosecutor  of  an  imlictment  for  tliat  of- 
fence. In  practice,  the  prosecution  is 
always  tlie  result  of  a  coroner's  inquest. 
Therefore  we  are  clearly  of  opinion  that 
her  confession  was  properly  received." 
See  Reg.  v.  Moore,  10  Jur.  622 ;  12  Eng. 
L.  &  Eq.  583. 

In  South  Carolina  it  has  been  held,  that 
where  the  prisoner,  after  due  warning  of 
all  the  consequences,  and  the  allowance 
of  sufHcient  time  for  reflei'tioii,  conft'sses 
his  guilt  to  a  private  person,  who  has  no 


CHAP,  xn.] 


OF  CONFESSIONS. 


265 


§  224.  Examinations.  The  same  rule,  that  the  confession  must 
be  voluntary,  is  applied  in  cases  where  the  prisoner  has  been 
examined  before  a  magistrate,  in  the  course  of  which  examination 
the  confession  is  made.  The  practice  of  examining  the  accused 
was  familiar  in  the  Roman  jurisprudence,  and  is  still  continued 
in  Continental  Europe ;  ^  but  the  maxim  of  the  common  law  was, 
Xerno  tenetur  prodere  seipsum ;  and  therefore  no  examination 
of  the  prisoner  himself  was  permitted  in  England,  until  the  pas- 
sage of  the. statutes  of  Philip  and  Mary .2  By  these  statutes,  tbe 
main  features  of  which  have  been  adopted  in  several  of  the  United 
States,^  the  justices,  before  whom  any  person  shall  be  brought, 
charged  with  any  of  the  crimes  therein  mentioned,  shall  take  the 
examination  of  the  prisoner,  as  well  as  that  of  the  witnesses,  in 
writing,  which  the  magistrate  shall  subscribe,  and  deliver  to  the 
proper  officer  of  the  court  where  the  trial  is  to  be  had.  The 
signature  of  the  prisoner,  when  not  specially  required  by  statute, 
is  not  necessary ;  though  it  is  expedient,  and  therefore  is  usually 
obtained.*  The  certificate  of  the  magistrate,  as  will  be  hereafter 
shown  in  its  proper  place,^  is  conclusive  evidence  of  the  manner 
in  which  the  examination  was  conducted ;  and,  therefore,  where 


control  over  his  person  or  the  prosecu- 
tion, the  confession  is  admissible  in  evi- 
dence, although  the  person  may  have 
influence  and  ability  to  aid  him.  The 
State  V.  Kirby,  1  Strob.  155. 

i  The  course  of  proceeding,  in  such 
cases,  is  fully  detailed  in  B.  Carpzov. 
Practicae  Rerum  Criminal.  Pars  III., 
Quasst.  113,  per  tot. 

2  1  &  2  Phil.  &  M.  c.  13;  2  &  3  Phil. 
&  M.  c.  10;  7  Geo.  IV.  c.  64;  4  Bl. 
Comm.  29.5.  The  object  of  these  stat- 
utes, it  is  said,  is  to  enable  the  judge  to 
see  whetlier  the  offence  is  bailable,  and 
that  both  the  judge  and  jury  may  see 
whether  the  witnesses  are  consistent  or 
contradictory,  in  their  accounts  of  the 
transaction.  The  prisoner  should  only 
be  asked,  whether  he  wishes  to  say  any 
thing  in  answer  to  the  charge,  when  he 
had  heard  all  that  the  witnesses  in  sup- 
port of  it  had  to  say  against  him.  See 
Joy  on  Confessions,  &c.,  pp.  92-94  ;  Kex 
V.  Saunders,  2  Leach's  Cr.  Cas.  652  ;  Rex 
V.  Fagg,  4  C.  &  P.  567.  But  if  he  is 
called  upon  to  make  his  answer  to  the 
charge,  before  he  is  put  in  possession  of 
all  the  (svidence  against  him,  tliis  irregu- 
larity is  not  sufficient  to  exclude  the  evi- 
dence of  his  confession.  Rex  v.  Bell,  5 
C.  &  P.  163.  His  statement  is  not  an  an- 
swer to  the  depositions,  but  to  the  charge. 


He  is  not  entitled  to  have  the  depositions 
first  read,  as  a  matter  of  right.  But  if 
his  examination  refers  to  any  particular 
depositions,  he  is  entitled  to  have  them 
read  at  the  trial,  by  way  of  explanation. 
Dennis's  case,  2  Lew.  Cr.  Cas.  261.  See 
further,  Rowland  v.  Ashby,  Ry.  &  M. 
231,  per  Best,  C.  J. ;  Rex  v.  Simons,  6 
C.  &  P.  540 ;  Reg.  v.  Arnold,  8  C.  &  P. 
621. 

••  See  Neio  York  Revised  Statutes, 
part  4,  c.  2,  tit.  2,  §§  14-16.  26;  Bel- 
linger's case,  8  Wend.  595,  599 ;  Elmer's 
Laws  of  New  Jersey,  p.  450,  §  6;  Laws  of 
Alabama  (Toulmin's  Digest),  tit.  17,  c.  3, 
§2,  p.  219;  Laws  of  Tennessee  (Carru- 
thers  and  Nicholson's  Digest),  p.  426; 
North  Carolina,  Rev.  St.  c.  35,  §  1 ;  Laws 
of  Mississippi  (Alden  and  Van  Hoesen's 
Digest),  c.  70,  §  5,  p.  532;  Hutchinson's 
Dig.  c.  50,  art.  2,  §  5;  Laws  of  Delaware 
(Revised  Code  of  1829),  p.  63;  Brevard's 
Laws  of  South  Carolina,  vol.  i.  p.' 460; 
Laws  of  Missouri  (Revision  of  1835), 
p.  476  ;  Id.  Rev.  Stat.  1845,  c.  138,  §  15-17. 
See  also  Massachusetts  Rev.  Stat.  c.  85, 
§  25 ;  Respublica  v.  McCarty,  2  Dall.  87, 
per  McKean,  C.  J. 

*  1  Chitty's  Crim.  Law,  87 ;  Lambe's 
case,  2  Leach's  Cr.  Cas.  625. 

6  Infra,  §  227. 


266  LAW   OF  EVIDENCE.  [PAET  U. 

he  had  certified  that  the  prisoner  was  examined  under  oath,  parol 
evidence  to  show  that  in  fact  no  oath  had  been  administered  to 
the  prisoner  was  held  inadmissible.^  But  the  examination  cannot 
be  given  in  evidence  until  its  identity  is  jDroved.^  If  the  prisoner 
has  signed  it  with  his  name,  this  implies  that  he  can  read,  and  it 
is  admitted  on  proof  of  his  signature  ;  but  if  he  has  signed  it  with 
his  mark  only,  or  has  not  signed  it  at  all,  the  magistrate  or  his 
clerk  must  be  called  to  identify  the  writing,  and  prove  that  it 
was  truly  read  to  the  prisoner,  who  assented  to  its  correctness.^ 

§  225.  Same  subject.  The  manner  of  examinatio7i  is,  therefore, 
particularly  regarded  ;  and  if  it  appears  that  the  prisoner  had  not 
been  left  wholly  free,  and  did  not  consider  himself  to  be  so,  in 
what  he  was  called  upon  to  say,  or  did  not  feel  himself  at  liberty 
wholly  to  decline  any  explanation  or  declaration  whatever,  the 
examination  is  not  held  to  have  been  voluntary.^  In  such  cases, 
not  only  is  the  written  evidence  rejected,  but  oral  evidence  will 
not  be  received  of  what  the  prisoner  said  on  that  occasion.^  The 
prisoner,  therefore,  must  not  be  sworn.^  But  where,  being  mis- 
taken for  a  witness,  he  was  sworn,  and  afterwards,  the  mistake 
being  discovered,  the  deposition  was  destroyed  ;  and  the  prisoner, 
after  having  been  cautioned  by  the  magistrate,  subsequently 
made  a  statement ;  this  latter  statement  was  held  admissible.'^ 
It  may,  at  first  view,  appear  unreasonable  to  refuse  evidence  of 
confession,  merely  because  it  was  made  under  oath,  thus  having 

1  Rex  V.  Smith  &  Homage,  1   Stark,  course,  in  substance,  was  recommended 

242;    Rex   v.   Rivers,   7    C.    &  P.    177;  by   Lord   Denman,   in   Reg.   v.  Arnold, 

Reg.  V.  Pikesley,  9  C.  &  P.  124.  8   C.  &  P.  622.     The   omission   of  this 

'■^  Hawk.  P.  C.  b.  2,  c.  46,  §  3,  n.  (1).  course,  however,  will  not  alone  render  the 

^  Rex  V.  Chappel,  1  M.  &  Rob.  395.  confession  inadmissible. 

*  The  proper  course  to  be  pursued  in  ^  Rex  v.  Rivers,  7  C.  &  P.  177;  Rex 

these  cases,  by  the  examining  magistrate,  v.  Smith  et  al.,  1  Stark.  242;  Harman's 

is  thus  laid  down  by  Gurney,  B.,  in  Rex  case,   6   Pa.   Law   Journ.    120.     But  an 

V.  Greene,  5  C.  «&  P.  312:  "  To  dissuade  a  examination,  by  way  of  question  and  an- 

prisoner  was  wrong.     A  prisoner  ought  to  swer,  is  now  held  good,  if  it  appears  free 

be  told  that  his  confessing  will  not  operate  from  any  other  objection.     Rex  i».  Ellis, 

at  all  in  his  favor  ;  and  that  he  must  not  Ry.  &  M.  432 ;  2  Stark.  Evid.  2!)  n.  (//) ; 

expect  any  favor  because  he  makes  a  con-  though  formerly  it  was  held  otherwise,  in 

fession  ;  and  that,  if  any  one  has  told  him  Wilson's  case,  Holt,  597.     See  acr.  Jones's 

that  it  will  bo  better  for  him  to  confess,  or  case,  2   Russ.   658,  n. ;    Roscoe's   Crim. 

worse  for  him  if  he  does  not,  he  must  pay  Evid.  44.     So,  if  the  questions  were  put 

no  attention  to  it ;  and  that  any  thing  he  by  a  police-officer,  Rex  v.   Thornton,   1 

says  to  criminate  himself  will  i)e  used  as  Mood.  Cr.  Cas.  27,  or  by  a  fellow-pris- 

evidence  against  him  on  his  trial.     After  oner,  Rex  v.  Shaw,  6  C.  &  P.  372,  they 

that  admonition,  it  oughtto  be  left  entirely  are  not,  on  that  account,  objectionable, 

to  himself   whether   he  will   make  any  See  also  Rex  v.  Wild,  1  Mood.  Cr.  Cas. 

statement  or  not ;  but  he  ought  not  to  be  452  ;  in/ra,  §  229. 

dissuaded  from  making  a  perfectly  volun-  «  Biill.  N.  P.  242;  Hawk.  P.  C.  b.  2, 

tary  confession,  because  that  is  sliutting  c.  46,  §  3. 

one  of  the  sources  of  justice."    The  same  ^  Rex  v.  Webb,  4  C.  &  P.  564. 


CflAP.  XII.]  OF  CONCESSIONS.  267 

in  favor  of  its  truth  one  of  the  liighest  sanctions  known  in  the 
law.  But  it  is  to  be  observed,  that  none  but  voluntary  confes- 
sions are  admissible ;  and  that  if  to  the  perplexities  and  embar- 
rassments of  the  prisoner's  situation  are  added  the  danger  of 
perjury,  and  the  dread  of  additional  penalties,  the  confession  can 
scarcely  be  regarded  as  voluntary  ;  but,  on  the  contrary,  it  seems 
to  be  made  under  the  very  influences  which  the  law  is  particu- 
larly solicitous  to  avoid.  But  where  the  prisoner,  having  been 
examined  as  a  witness,  in  a  prosecution  against  another  person, 
answered  questions  to  which  he  might  have  demurred,  as  tending 
to  crimmate  himself,  and  which,  therefore,  he  was  not  bound  to 
answer,  his  answers  are  deemed  voluntary,  and,  as  such,  may  be 
subsequently  used  against  himself,  for  all  purposes  ;  ^  though 
where  his  answers  are  compulsory,  and  under  the  peril  of  punish- 
ment for  contempt,  they  are  not  received.^ 

§  226.  Same  subject.  Thus,  also,  where  several  persons,  among 
whom  was  the  prisoner,  was  summoned  before  a  committing 
magistrate,  upon  an  investigation  touching  a  felony,  there  being 
at  that  time  no  specific  charge  against  any  person ;  and  the  pris- 
oner, being  sworn  with  the  others,  made  a  statement,  and  at  the 
conclusion  of  the  examination  he  was  committed  for  trial  ;  it  was 
held,  that  the  statement  so  made  was  not  admissible  in  evidence 
against  the  prisoner.^  This  case  may  seem,  at  the  first  view,  to 
be  at  variance  with  what  has  been  just  stated  as  the  general 
principle,  in  regard  to  testimony  given  in  another  case ;  but  the 
difference  lies  m  the  different  natures  of  the  two  proceedings. 

1  2  Stark.  Evid.  28  ;  Wheater's  case,  2  People  v.  McMahon,  15  N.  Y.  Ct.  App.  384, 
Lew.  Cr.  Cas.  157  ;  s.  c.  2  Mood.  Cr.  Cas.  it  was  held,  where  one  arrested  without 
45;  Joy  on  Confessions,  &c.,  pp.  62-66;  warrant,  upon  suspicion  of  being  guilty  of 
Hawarth's  case,  Iloscoe's  Crim.  Evid.  45  ;  murder,  was  examined  before  the  coroner. 
Rex  V.  Tuby,  5  C.  &  P.  530,  cited  and  at  the  inquest,  upon  oath  as  a  witness, 
agreed  in  Rex  v.  Lewis,  6  C.  &  P.  161 ;  that  his  statements,  so  made,  could  not  be 
Rex  V.  Walker,  cited  by  Gurney,  B.,  in  given  in  evidence  against  him  on  his  trial 
the  same  case.  But  see  Rex  v.  Davis,  6  for  murder.  But  in  a  somewhat  similar 
C.  &  P.  177,  contra.  [See  also  Hendrick-  state  of  facts,  the  decision  was  different  in 
son  y.  The  People,  6  Selden  (N.  Y.),  13  ;  Schoeffler  v.  State,  3  Wis.  823.  It  would 
Teachartw.  People,  41  N.  Y.  7  ;  Common-  seem  that,  upon  principle,  if  the  witness 
wealth  V.  King,  8  Gray,  501.]  volunteered  to   give  evidence,  with  the 

2  Supra,  §  193,  n. ;  mfra,  §  451 ;  Reg.  full  understanding  that  lie  was  at  liberty 
V.  Garbett,  2  C.  &  K.  474.  But  where  to  decline,  and  that  what  he  said  would 
one  was  examined  before  the  grand  jury  be  liable  to  be  used  as  evidence  against 
as  a  witness,  on  a  complaint  against  an-  him,  he  could  not  object  to  it  being  so 
other  person,  and  was  afterwards  liimself  used.] 

indicted  for  that  same  offence,  it  was  held  8  Rex  v.  Lewis,  6  0.  &  P.  161,  per  Gur- 

that  his  testimony  before  the  grand  jury  ney,  B. ;   Reg.   v.   Wheeley,  8    C.  &  P. 

was  admissible  in  evidence  against  him.  250 ;  Reg.  v.  Owen,  9  C.  &  P.  238. 
The  State  v.  Broughton,  7  Lred.  96.     [In 


268 


LAW   OF  EVIDENCE. 


[PAET  n. 


In  the  former  case,  the  mind  of  the  witness  is  not  disturbed  by  a 
criminal  charge,  and,  moreover,  he  is  generally  aided  and  pro- 
tected by  the  presence  of  the  counsel  in  the  cause ;  but  in  the 
latter  case,  being  a  prisoner,  subjected  to  an  inquisitorial  exami- 
nation, and  himself  at  least  in  danger  of  an  accusation,  his  mind 
is  brought  under  the  full  influence  of  those  disturbing  forces 
against  which  it  is  the  policy  of  the  law  to  protect  him.^ 

§  227.  Examination  conclusive.  As  the  statutes  require  that  the 
magistrate  shall  reduce  to  writing  the  whole  examination,  or  so 
much  thereof  as  shall  be  material,  the  law  conclusively  presumes^ 
that,  if  any  thing  was  taken  down  in  writing,  the  magistrate  per- 
formed all  his  duty  by  taking  down  all  that  Avas  material.^  In 
such  case,  no  parol  evidence  of  what  the  prisoner  may  have  said 
on  that  occasion  can  be  received.^  But  if  it  is  shown  that  the 
examination  was  not  reduced  to  writing ;  or  if  the  written  exam- 
ination is  wholly  inadmissible,  by  reason  of  irregularity ;  parol 
evidence  is  admissible  to  prove  what  he  voluntarily  disclosed.* 
And  if  it  remains  uncertain  whether  it  was  reduced  to  writing  by 
the  magistrate  or  not,  it  will  be  j)resumed  that  he  did  his  duty, 
and  oral  evidence  will  be  rejected.^  A  written  examination, 
however,  will  not  exclude  parol  evidence  of  a  confession  previ- 


1  It  has  been  thought,  on  the  authority 
of  Britton's  case,  1  .M.  &  Rob.  297,  that 
the  bahmce-sheet  of  a  bankrupt,  remlered 
in  his  examination  under  the  commission, 
was  not  admissible  in  evidence  against 
him  on  a  subsequent  criminal  cliarge  be- 
cause it  was  rendered  upon  compulsion. 
But  the  ground  of  this  decision  was  after- 
wards declared  by  the  learned  judge  who 
pronounced  it,  to  be  only  this,  that  there 
was  no  previous  evidence  of  the  issuing  of 
the  commission  ;  and,  therefore,  no  foun- 
dation had  been  laid  for  iiitroduciug  tiie 
balance-sheet  at  all.  See  Wheater's  case, 
2  Mood.  Cr.  (^as.  45,  61. 

2  Mr.  Joy,  in  his  Treatise  on  Confes- 
sions, &c.,  pp.  8!  M)2, 237,  dissents  from  this 
proposition,  so  far  as  regards  the  conclusive 
cliaracterof  the  presumption  ;  whicli,  he 
thinks,  is  neither  "supported  by  the  au- 
thorities," nor  "  reconcilable  witii  the  ob- 
ject with  which  examinations  are  taken." 
bee  supra,  §  224,  n.  But  \ipon  a  careful 
review  of  the  authorities,  and  with  defer- 
ence to  the  opinion  of  that  learned  writer, 
I  am  constrained  to  leave  the  text  unal- 
tered.    See  infra,  §  27.J-277. 

»  Hex  V.  Weller,  2  Car.  &  Kir.  223. 
Whatever  tiie  prisoner  voluntarily  said, 


respecting  the  particular  felony  under  ex- 
amination, should  be  taken  down,  but  not 
that  wliich  relates  to  another  matter.  lb. 
And  see  Reg.  v.  Butler,  2  Car.  &  Kir.  221. 

*  Rex  V.  Fearshire,  1  Leach's  Cr.  Cas. 
240;  Rex  f.  Jacobs,  Id.  347  ;  Irwin's  case, 
1  Hay  w.  112  ;  Rex  v.  Bell,  5  C.  &  P.  162 ; 
Rex  V.  Read,  1  M.  &  M.  403  ;  Phillips  v. 
Winburn,4  C.  &  P.  27o  [State  v.  Parish, 
Busbee,  Law,  230].  If  the  magistrate 
returns,  that  the  prisoner  "declined  to 
say  any  thing,"  parol  evidence  of  state- 
ments made  bj'  him  in  the  magistrate's 
presence,  at  tlie  time  of  tiie  examination, 
is  not  admissible.  ]{ex  v.  Walter,  7  C.  & 
P.  267.  See  also  Rex  v.  Rivers,  Id.  177 ; 
Reg.  V.  Morse  et  al.,  8  C.  &  P.  605; 
Leach  v.  Simpson,  7  Dowl.  613.  Upon 
the  same  principle,  where,  on  a  prelimi- 
nary hearing  of  a  case,  the  magistrate's 
clerk  wrote  down  what  a  witness  said,  but 
tiie  writing  was  not  signed,  and  therefore 
was  inadnnssible,  oral  evitlence  was  held 
admissible  to  prove  what  the  witness  tes- 
tified. Jeans  v.  Wheedon,  2  M.  &  Rob. 
484. 

^  Ilinxman's  case,  1  Leach's  Cr.  Cas 
349,  u. 


CHAP.  Xn.]  OF  CONFESSIONS.  269 

ously  and  extrajudicially  made  ;  ^  nor  of  sometliing  incidentally 
said  by  the  prisoner  during  liis  examination,  but  not  taken  down 
by  the  magistrate,  provided  it  formed  no  part  of  the  judicial  in- 
quiry, so  as  to  make  it  the  duty  of  the  magistrate  to  take  it 
down.2  So  where  the  prisoner  was  charged  with  several  larcenies, 
and  the  magistrate  took  his  confession  in  regard  to  the  property 
of  A,  but  omitted  to  write  down  what  he  confessed  as  to  the 
goods  of  B,  not  remembering  to  have  heard  any  thing  said  re- 
specting them,  it  was  held  that  parol  evidence  of  the  latter 
confession,  being  precise  and  distinct,  was  properly  admitted.^ 

§  228.  Prisoner's  signature  not  necessary.  It  has  ah'Cady  been 
stated,  that  the  signature  of  the  j^fisoner  is  not  necessary  to  the 
admissibility  of  his  examination,  though  it  is  usually  obtained. 
But  where  it  has  been  requested  agreeably  to  the  usage,  and  is 
absolutely  refused  by  the  prisoner,  the  examination  has  been  held 
inadmissible,  on  the  ground  that  it  was  to  be  considered  as  in- 
complete, and  not  a  deliberate  and  distinct  confession.^  Yet 
where,  in  a  similar  case,  the  prisoner,  on  being  required  to  sign 
the  document,  said,  "  it  is  all  true  enough  ;  but  he  would  rather 
decline  signing  it,"  the  examination  was  held  comjDlete,  and  was 
accordingly  admitted.^  And  in  the  former  case,  which,  however, 
is  not  easily  reconcilable  with  those  statutes,  which  require  noth- 
ing more  than  the  act  of  the  magistrate,  though  the  examination 
is  excluded,  yet  parol  evidence  of  what  the  prisoner  voluntarily 
said  is  admissible.  For  though,  as  we  have  previously  observed,^ 
in  certain  cases  where  the  examination  is  rejected,  parol  evidence 
of  what  was  said  on  the  same  occasion  is  not  received,  yet  the 
reason  is,  that  in  those  cases  the  confession  was  not  voluntary  ; 
whereas,  in  the  case  now  stated,  the  confession  is  deemed  volun- 


^  Eex  V.  Carty,  McNally's  Evid.  p.  45.  and  limited  its  application  to  confessions 

2  Moore's  case,  Roscoe's  Crim.  Evid.  of  otlier  offences  than  the  one  for  wliich 

45,  per  Parke,  J. ;  Rex  v.  Spilsbury,  7  C.  the  prisoner  was  on  trial.     But  the  case  is 

&  P.  188 ;  Malony's  case,  Id.  (otherwise  more  fully  stated,  and  the  view  of  Mr. 

Miilvey's  case,  Joy  on  Confessions,  &c.,  Phillips  dissented  from,  in  2  Russell  on 

p.  238),  per  Littledale,  J.     In  Rowland  v.  Crimes,  pp.  876-878,  n.  by  Mr.  Greaves. 

Ashbuy,  Ry.  &  My.  221,  Mr.  Justice  Best  See  also  Joy  on  Confessions,  pp.  89-93. 

was  of  opinion  that,  "upon  clear  and  satis-  <  Rex  i'.  Telicote,  2  Stark.  483  ;  Ben- 

factory  evidence,  it  would  be  admissible  to  nett's  case,  2  Leach's   Cr.  Cas.  627,  n. ; 

prove  something  said  by  a  prisoner,  be-  Rex  v.  Foster,  1   Lewin's  Cr.   Cas.  46 ; 

yond  wliat  was  taken  down  by  the  com-  Rex  v.  Hirst,  Id. 

mitting  magistrate."  8  Lambe's  case,  2  Leach's  Cr.  Cas 

8  Harris's  case,  1  Mood.  Cr.  Cas.  338.  625. 

See   2    Phil.   Evid.    84,  n.,   where    the  6  Supra,  §  225. 

learned  author  has  reviewed  this  case. 


270 


LAW   OF   EVIDENCE. 


[part  n. 


tary,  but  the  examination  only  is  incomplete.^  And  wherever 
the  examination  is  rejected  as  documentary  evidence,  for  infor- 
mality, it  may  still  be  used  as  a  writing,  to  refresh  the  memory 
of  the  witness  who  wrote  it,  when  testifying  to  what  the  prisoner 
voluntarily  confessed  upon  that  occasion.^ 

§  229.  "What  inducements  do  not  vitiate.  Though  it  is  necessary 
to  the  admissibility  of  a  confession  that  it  should  have  been  vol- 
untarily made,  that  is,  that  it  should  have  been  made,  as  before 
shown,  without  the  appliances  of  hope  or  fear  from  persons  hav- 
ing authority,  yet  it  is  not  necessary  that  it  should  have  been 
the  prisoner's  own  spontaneous  act.  It  will  be  received,  though  it 
were  induced  by  spiritual  exhortations,  whether  of  a  clergyman,^ 
or  of  any  other  person  ;  ^  by  a  solemn  promise  of  secrecy,  even 
confirmed  by  an  oath  ;  ^  or  by  reason  of  the  prisoner's  having 
been  made  drunken;^  or  by  a  promise  of  some  collateral  benefit  or 
boon,  no  hope  or  favor  being  held  out  in  respect  to  the  criminal 
charge  against  him  ',"'  or  by  any  deception  practised  on  the  pris- 
oner, or  false  representation  made  to  him  for  that  purpose,  pro- 
vided there  is  no  reason  to  suppose  that  the  inducement  held 
out  was  calculated  to  produce  any  untrue  confession,  wliich  is 
the  main  point  to  be  considered.^     So,  a  confession  is  admissible, 


1  Thomas's  case,  2  Leach's  Cr.  Cas. 
727 ;  Dewhurst's  case,  1  Lewin's  Cr. 
Cas.  47  ;  Rex  v.  Swatkins,  4  C.  &  P. 
548 ;  Rex  v.  Read,  1  M.  &  M.  403. 

2  Layer's  case,  16  Howell's  St.  Tr. 
215 ;  Rex  v.  Swatkins,  4  C.  &  P.  548, 
and  n.  (a) ;  Rex  v.  Tarrant,  6  C.  &  P. 
182  ;  Rex  v.  Pressly,  Id.  183  ;  supra,  §  90; 
infra,  §  436. 

8  Rex  V.  Gllham,  1  Mood.  Cr.  Cas.  186, 
more  fully  reported  in  Joy  on  Confes- 
sions, &c.,  pp.  52-56  ;  Commonwealth  v. 
Drake,  15  Mass.  161.  In  the  Roman  law 
it  is  otlierwise  ;  penitential  confessions  to 
the  priest  being  encouraged,  for  the  relief 
of  the  conscience,  and  tlie  priest  being 
bound  to  secrecy  by  the  peril  of  punish- 
ment. "  Confessio  coram  sacerdote,  in 
poenitentia  facta,  non  probat  in  judicio  ; 
qiiia  censettir  fiirta  coram  Deo ;  imo,  si 
eacerdos  eam  cnunciat, incidit  in  poenani." 
Mascardus,  l)c  Trobat.  vol.  i.  Concl.  377. 
It  was  lawful,  liowever,  for  the  priest  to 
testify  in  such  cases  to  tlie  fact  tliat  the 
party  had  made  a  penitential  confession 
to  him,  as  tlie  Church  requires,  and  that 
he  had  enjoined  penance  upon  liim  ;  and, 
with  the  express  consent  of  tlie  penitent, 
he  might  lawfully  testify  to  the  substance 


of  the  confession  itself.    lb.    See  further, 
infra,  §  247. 

'  4  Rex  V.  Wild,  1  Mood.  Cr.  Cas.  452; 
Rex  V.  Court,  7  C.  &  P.  486;  Joy  on 
Confessions,  &c,,  pp.  49,  51. 

5  Rex  V.  Shaw,  6  C.  &  P.  372 ;  Com- 
monwealth V.  Knapp,  9  Pick.  496,  500- 
510.  So,  if  it  was  overheard,  whether 
said  to  himself  or  to  another.  Rex  v. 
Simons,  Id.  540. 

6  Rex  V.  Spilsbury,  7  C.  &  P.  187 
[Eskridge  v.  State,  25  Ala.  30.  Not  if  he 
be  so  drunk  as  not  to  understand  what 
he  was  saj'ing.  And  whether  he  was  so 
or  not  is  for  the  jury,  Com.  d.  Howe,  9 
Gray  (Mass.),  110.  Or  otherwise  insen- 
sible, as  if  asleep,  People  v.  Robinson, 
19  Cal.  40]. 

7  Rex  V.  Green,  6  C.  &  P.  6.55;  Rex  v. 
Lloyd,  Id.  393  [State  v.  Wentworth, 
37  N.  H.  196.  As  that  he  shall  have 
some  spirits,  or  see  his  wife,  or  have  his 
handcuffs  removed.  Rex  v.  Green,  6  C. 
&  P.  655;  Rex  v.  Lloyd,  6'C.  &  P.  393; 
2  Russell,  C.  &M.  827,  n.  (k)]. 

8  Rex  V.  Derrington,  2  C.  &  P.  418 ; 
Burley's  case,  2  Stark.  Evid.  12,  n.  See 
Commonwealth  v.  Tuckerman,  10  Gray, 
173.     [See  also /)os^  §  254.J 


CHAP.  Xn.]  OF  CONPESSIONS.  )  271 

though  it  is  elicited  by  questions,  whether  put  to  the  prisoner  by 
a  magistrate,  officer,  or  private  person  ;  and  the  form  «rf  the  ques- 
tion is  immaterial  to  the  admissibility,  even  though  it  assumes  the 
prisoner's  guilt.^  In  all  these  cases  the  evidence  Snay  be  laid 
before  the  jury,  however  little  it  mnj  weigh,  under  the  circum- 
stances, and  howcA'er  reprehensible  may  be  the  mode  in  which,  in 
some  of  them,  it  was  obtained.  All  persons,  except  counsellors 
and  attorneys,  are  compellable  at  common  law  to  reveal  what  they 
may  have  heard ;  and  counsellors  and  attorneys  are  excepted  only 
because  it  is  absolutely  necessary,  for  the  sake  of  their  clients, 
and  of  remedial  justice,  that  communications  to  them  should  be 
protected.^  Neither  is  it  necessary  to  the  admissibility  of  any 
confession,  to  whomsoever  it  may  have  been  made,  that  it  should 
appear  that  the  prisoner  was  warned  that  what  he  said  would  be 
used  against  him.  On  the  contrary,  if  the  confession  was  volun- 
tary, it  is  sufficient,  though  it  should  appear  that  he  was  not  so 
warned.^ 

§  230.  Illegal  imprisonment.  It  has  been  thought  that  illegal 
imiyrisonment  exerted  such  influence  upon  the  mind  of  the  pris- 
oner as  to  justify  the  inference  that  his  confessions,  made  during 
its  continuance,  were  not  voluntary ;  and  therefore  they  have 
been  rejected.*  But  this  doctrine  cannot  yet  be  considered  as 
satisfactorily  established.^ 

§  231.  Information  obtained  from  the  prisoner.  The  object  of  all 
the  care  which,  as  we  have  now  seen,  is  taken  to  exclude  confes- 
sions which  were  not  voluntary,  is  to  exclude  testimony  not  prob- 
ably true.  But  where,  in  consequence  of  the  information  obtained 
from  the  prisoner,  the  property  stolen,  or  the  instrument  of  the 
crime,  or  the  bloody  clothes  of  the  person  murdered,  or  any  other 
material  fact,  is  discovered,  it  is  competent  to  show  that  such  dis- 


1  Eex  V.  "Wild,  1  Mood.  Cr.  Cas.  452;  Cuffee,  108  Mass.  285.  And  it  is  no 
Hex  V.  Thornton,  Id.  27  ;  Gibney's  case,  objection  to  the  admissibility  of  confes- 
Jebb's  Cr.  Cas.  15 ;  Kerr's  case,  8  C.  &  sions  made  by  those  accused  of  crime, 
P.  179.  SeeJoyon  Confessions, pp.  34—40,  that  they  were  made  by  them  while 
42—44;  Arnold's  case,  8  C.  &  P.  622;  under  arrest,  whether  to  the  officer  or 
supra,  §  225,  n.  (1).  third    persons,   provided   there   was    no 

2  Per  Patteson,  J.,  in  Rex  v.  Shaw,  6  promise,  threat,  or  other  inducement  re- 
C.  &  P.  372.  Physicians  and  clergymen,  sorted  to.  People  v.  Rogers,  18  N.  Y. 
by  statutes.      [Jn/ra,  §§   247,   248,   and  Ct.  App.  9]. 

notes.]  *  Per  Holroyd,   J.,   in  Ackroyd  and 

3  Gibney's  case,  Jebb's  Cr.  Cas.  15  ;  Warburton's  case,  1  Lewin's  Cr.  Cas.  49. 
Rex  V.  Ma'gill,  cited  in  McNally's  Evid.  5  Rgx  v.  Thornton,  1  Mood.  Cr.  Cas. 
38  ;  Reg.  i-.  Arnold,  8  C.  &  P.  622  ;  Joy  27. 

on    Confessions,    pp.    45-48     [Com.    v. 


272  LAW   OF  EVIDENCE.  [PABT  H. 

covery  was  made  conformably  to  the  information  given  by  the 
prisoner.  The  statement  as  to  his  knowledge  of  the  place  where 
the  property  or  other  evidence  was  to  be  found,  being  thus  con- 
firmed by  the  fact,  is  proved  to  be  true,  and  not  to  have  been 
fabricated  in  consequence  of  any  inducement.  It  is  competent, 
therefore,  to  inquire  whether  the  prisoner  stated  that  the  thing 
would  be  found  by  searching  a  particular  place,  and  to  prove  that 
it  was  accordingly  so  found  ;  but  it  would  not  be  competent  to 
inquire  whether  he  confessed  that  he  had  concealed  it  there. ^ 
This  limitation  of  the  rule  was  distinctly  laid  down  by  Lord 
Eldon,  who  said  that  where  the  knowledge  of  any  fact  was  ob- 
tained from  a  prisoner,  under  such  a  promise  as  excluded  the  con- 
fession itself  from  being  given  in  evidence,  he  should  direct  an 
acquittal,  unless  the  fact  itself  proved  would  have  been  sufficient 
to  warrant  a  conviction  without  any  confession  leading  to  it.^ 

§  232.  Acts  of  the  prisoner.  If  the  prisoner  himself  produces  the 
goods  stolen,  and  delivers  them  up  to  the  prosecutor,  notwithstand- 
ing it  may  appear  that  this  was  done  upon  inducements  to  con- 
fess, held  out  by  the  latter,  there  seems  no  reason  to  reject  the 
declarations  of  the  prisoner,  contemporaneous  with  the  act  of 
delivery,  and  explanatory  of  its  character  and  design,  though  they 
may  amount  to  a  confession  of  guilt ;  ^  but  whatever  he  may  have 
said  at  the  same  time,  not  qualifying  or  explaining  the  act  of 
delivery,  is  to  be  rejected.  And  if,  in  consequence  of  the  confes- 
sion of  the  prisoner,  thus  improperly  induced,  and  of  the  informa- 
tion by  him  given,  the  search  for  the  property  or  person  in  question 
proves  wholly  ineffectual,  no  proof  of  either  will  be  received.  The 
confession  is  excluded,  because,  being  made  under  the  influence 
of  a  promise,  it  cannot  be  relied  upon  ;  and  the  acts  and  informa- 
tion of  the  prisoner,  under  the  same  influence,  not  being  confirmed 
by  the  finding  of  the  property  or  person,  are  open  to  the  same 
objection.  The  influence  which  may  produce  a  groundless  con- 
fession may  also  produce  groundless  conduct.* 

§  233.  Confessions  of  others.  As  to  the  prisoner's  liability  to  be 
affected  by  the  confessions  of  others,  it  may  be  remarked,  in  gen- 

1  1  Phil.  Evifl.  411;  Warickshall'scase,  658;  Lockhart's  case,  1  Leach's  Cr.  Caa. 
1  Leach's  Cr.  Cas.  '298  ;  Mosoy's  case,  Id.     430. 

801,  n.;  Commonwcaltli  V.  Knapp,  9Pick.  3  Rex  u.  Griffin,  Russ.  &  Ry.  151 ;  Rex 

49G,  rill  ;  Reg.  v.  Gould,  9  C.  &  P.  3(34;  v.  Jones,  Id.  152. 

Rex  V.  Harris,  1  Mood.  Cr.  Cas.  338.  <  Rex  i;.  Jenkins,  Russ.  &  JRy.  492; 

2  2  East,  P.  C.  657 ;  Harvey's  case.  Id.  Reg.  v.  Hearn,  1  Car.  &  Marsh.  109. 


CHAP.  Xn.]  OF  CONFESSIONS.  273 

eral,  that  the  principle  of  the  law  in  civil  and  criminal  cases  is 
the  same.  In  civil  cases,  as  we  have  already  seen/  when  once 
the  fact  of  agency  or  partnership  is  established,  every  act  and 
declaration  of  one,  in  furtherance  of  the  common  business,  and 
until  its  completion,  is  deemed  the  act  of  all.  And  so,  in  cases 
of  conspiracy,  riot,  or  other  crime,  perpetrated  by  several  persons, 
when  once  the  conspiracy  or  combination  is  established,  the  act 
or  declaration  of  one  conspirator  or  accomplice,  in  the  prosecu- 
tion of  the  enterprise,  is  considered  the  act  of  all,  and  is  evidence 
against  all.2*  Each  is  deemed  to  assent  to,  or  command,  what  is 
done  by  any  other,  in  fui"therance  of  the  common  object.^  Thus, 
in  an  indictment  against  the  owner  of  a  ship,  for  violation  of  the 
statutes  against  the  slave-trade,  testimony  of  the  declarations  of 
the  master,  being  part  of  the  res  gestce^  connected  with  acts  in 
furtherance  of  the  voyage,  and  within  the  scope  of  his  authority, 
as  an  agent  of  the  owner,  in  the  conduct  of  the  guilty  enterprise, 
is  admissible  against  the  owner.*  But  after  the  common  enter- 
prise is  at  an  end,  whether  by  accomplishment  or  abandonment  is 
not  material,  no  one  is  permitted,  by  any  subsequent  act  or  dec- 
laration of  his  own,  to  affect  the  others.  His  confession,  there- 
fore, subsequently  made,  even  though  by  the  plea  of  guilty,  is 
not  admissible  in  evidence,  as  such,  against  any  but  himself.^  If 
it  were  made  in  the  presence  of  another,  and  addressed  to  him,  it 
might,  in  certain  circumstances,  be  receivable,  on  the  ground  of 
assent  or  implied  admission.  In  fine,  the  declarations  of  a  con- 
spirator or  accomplice  are  receivable  against  his  fellows  only 
when  they  are  either  in  themselves  acts,  or  accompany  and  ex- 
plain acts,  for  which  the  others  are  responsible  ;  but  not  when 
they  are  in  the  nature  of  narratives,  descriptions,  or  subsequent 
confessions.® 

1  Supra,  §§  112-114,  174,  176,  177.  et  al,  3  S.  &  R.  9  ;  Wilbur  v.  Strickland, 

2  So  is  the  Roman  law.  "  Confessio  1  Rawle,  458 ;  Reitenback  v.  Reitenback, 
uniusnonrrobatinprajjildiciuraalterius;  Id.  362;  2  Stark.  Evid.  232-237;  The 
quia  alias  esset  in  manu  confitentis  dicere  State  v.  Soper,  4  Shepl.  293. 

quod  vellet,  et   sic  jus  alteri  quifisitum  *  United  States  y.  Gooding,  12  Wheat, 

auferre,  quando  omnino  jure  prohibent ;  460. 

—  etiamsi  talis  confitens  esset  orani  ex-  *  Rex   v.   Turner,   1   Mood.  Cr.  Gas. 

ceptione   major.     Sed  limitabis,   quando  347;     Rex    v.    Appleby,    3    Stark.    33. 

inter  partes   convenit   parere   confessioni  et  And   see   Melen   v.  Andrews,  1  M.  &  M. 

dicto  uiiius  alterius."    Mascard.  DeProbat.  336,  per   Parke,    J.;    Reg.    v.    Hinks,  1 

Concl.  486,  vol.  i.  p.  409.  Den.  Cr.  Gas.  84 ;  1  Phil.  Evid.  199  (9th 

8  Per   Story,  J.,  in  United   States  v.  ed.);   Reg.  v.  Blake,  6  Ad.  &  El.  n.  s. 

Gooding,  12  Wheat.  469.     And  see  supra,  126.      [Nor  is  the  flight  of  one  conspirator 

§  111,  and  cases  there  cited.     TheAmeri-  evidence  of  guilt  against  another.   People, 

can  Fur  Ccmipany  v.  The  United  States,  v.  Stanley,  47  Gal.  112.] 
2  Peters,  3o8 ;  Commonwealth  v.  Eberle  ^  i  pMi.  on  Evid.  414 ;  4  Hawk.  P.  C. 

VOL.   I  18 


274  LAW  OF  EVIDENCE.  [PAET  H. 

§  234.  Agency.  The  same  principle  prevails  in  cases  of  agency. 
In  general,  no  person  is  answerable  criminally  for  the  acts  of  his 
servants  or  agents,  whether  he  be  the  prosecutor  or  the  accused, 
unless  a  criminal  design  is  brought  home  to  him.  The  act  of  the 
agent  or  servant  may  be  shown  in  evidence  as  proof  that  such  an 
act  was  so  done  ;  for  a  fact  must  be  established  by  the  same  evi- 
dence, whether  it  is  to  be  followed  by  a  criminal  or  civil  conse- 
quence ;  but  it  is  a  totally  different  question,  in  the  consideration 
of  criminal  as  distinguished  from  civil  justice,  how  the  principal 
may  be  affected  by  the  fact,  when  so  established.^  Where  it  was 
proposed  to  show  that  an  agent  of  the  prosecutor,  not  called  as  a 
witness,  offered  a  bribe  to  a  witness,  who  also  was  not  called,  the 
evidence  was  held  inadmissible  ;  though  the  general  doctrine,  as 
above  stated,  was  recognized.^ 

§  235.  Treason.  It  was  formerly  doubted  whether  the  confes- 
sion of  the  prisoner,  indicted  for  high  treason^  could  be  received 
in  evidence,  unless  it  were  made  upon  his  arraignment,  in  open 
court,  and  in  answer  to  the  indictment ;  the  statutes  on  this  sub- 
ject requiring  the  testimony  of  two  witnesses  to  some  overt  act  of 
treason.^  But  it  was  afterwards  settled,  and  it  is  now  agreed, 
that  though,  by  those  statutes,  no  confession  could  operate  con- 
clusively, and  without  other  proof,  to  convict  the  party  of  treason, 
unless  it  were  judicially  made  in  open  court  upon  the  arraign- 
ment, yet  that,  in  all  cases,  the  confession  of  a  criminal  might  be 

b.  2,  c.  46,  §  34 ;  Tong's  case,  Sir  J.  from,  and  who  furnishes  means  for  carry- 
Kelyng's  R.  18,  5th  Res.  In  a  case  of  ing  on,  the  concern,  and  intrusts  the  con- 
piracy,  where  the  persons  wlio  made  the  duct  of  the  publication  to  one  whom  lie 
confessions  were  not  identified,  but  tho  selects,  and  in  whom  he  confides,  may  be 
evidence  was  only  that  some  did  confess,  said  to  cause  to  be  published  what  actu- 
it  was  held  that,  though  such  confessions  ally  appears,  and  ought  to  be  answera))le, 
could  not  be  applied  to  any  one  of  the  tliough  you  cannot  show  that  he  was  in- 
prisoncrs,  as  proof  of  his  i)ersonal  guilt,  dividually  concerned  in  the  particular 
yet  the  jury  might  consider  them,  so  far  publication."  Rex  v.  Gufch,  1  M.  &  M. 
as  they  went,  to  identify  the  piratical  ves-  433,  437.  See  also  Story  on  Agency, 
sel.  United  States  v.  Gibert,  2  Sumn.  16  §§  452,  453,  455 ;  Rex  v.  Almon,  5  Burr. 
[State  V.  Thibcau,  30  Vt.  1001.  mm ;  Rex  v.  Walter,  3  Esp.  21 ;  South- 

1  Lord  Melville's  case,  29  Howell's  St.  wick  ;•.  Stephens,  10  Johns.  443. 

Tr.  764;   The  Queen's  case,  2  B.   &  B.  3  Foster's  Disc.  1,  §  8,  pp.  232-244;  1 

306,  307  ;  onpra,  §  170.  East's  P.  C.  131-133.     Under  the   Stat. 

2  The  Queen's  case,  2  B.  &  B.  302,  I  Ed.  VI.  c.  12,  and  5  Ed.  VI.  c.  11, 
306-309.  To  the  rule,  thus  generally  requiring  two  witnesses  to  convict  of  trea- 
laid  down,  there  is  an  apparent  excep-  son,  it  has  been  held  sufficient  if  one  wit 
tion,  in  the  case  of  the  proprietor  of  a  ness  j)rove  one  overt  act,  and  another 
newspaper,  who  is,  prima  facii',  criminally  prove  another,  if  both  acts  conduce  to  the 
responsible  forany  libel  it  contains,  though  pcrpetrationof  the  same  species  of  treason 
inserted  by  his  agent  or  servant  without  charged  upon  the  prisoner.  Lord  Staf- 
his  knowledge.  But  Lord  Tenterden  con-  ford's  case,  T.  Raym.  407  ;  3  St.  Tr.  204, 
sidered  this  case  as  falling  strictly  within  205;  1  East's  P.  0.  129;  1  Burr's  Trial, 
the  principle  of  the  rule;  for  "surely,"  196. 

said  he,  "  a   person   who  derives  profit 


CHAP.  Xn.]  OF  CONFESSIONS.  275 

given  in  evidence  against  him  ;  and  that  in  cases  of  treason,  if 
such  confession  be  proved  by  t\YO  witnesses,  it  is  proper  evidence 
to  be  left  to  a  jury.i  And,  in  regard  to  collateral  facts  which  do 
not  conduce  to  the  proof  of  any  overt  acts  of  treason,  they  may 
be  proved  as  at  common  law  by  any  evidence  competent  in  other 
criminal  cases. ^ 

1  Francia's  case,  1  East's  P.  C.  133-         2  Smith's  case,  Fost.  Disc.  p.  242 ;  1 
135.  East's  P.  C.  130.     See  infva,  §§  254,  255. 


270  LAW  OF  EVIDENCE.  [PAUT  H. 


CHAPTER  XIII. 

OF  EVIDENCE  EXCLUDED  FROM  PUBLIC   POLICY. 

§  236.  Kinds  excluded.  There  are  some  kinds  of  evidence  which 
the  law  excludes,  or  dispenses  with,  on  grounds  of  public  policy , 
because  greater  mischiefs  would  properly  result  from  requiring 
or»permitting  its  admission,  than  from  wholly  rejecting  it.  The 
prmciple  of  this  rule  of  the  law  has  respect,  in  some  cases,  to  the 
person  testifying,  and  in  others  to  the  matters  concerning  which 
he  is  interrogated,  thus  including  the  case  of  the  party  himself, 
and  that  of  the  husband  or  wife  of  the  party  on  the  one  hand,  and, 
on  the  other,  the  subject  of  professional  communications,  aivards, 
secrets  of  state,  and  some  others.  The  two  former  of  these  belong 
more  properly  to  the  head  of  the  Competency  of  Witnesses,  under 
which  they  will  accordingly  be  hereafter  treated.^  The  latter  we 
shall  now  proceed  briefly  to  consider. 

§  237.  Professional  communications.  And,  in  the  first  place,  in 
regard  to  professional  communications,  the  reason  of  public  policy, 
which  excludes  them,  applies  solely,  as  we  shall  presently  show, 
to  those  between  a  client  and  his  legal  adviser ;  and  the  rule  is 
clear  and  well  settled,  that  the  confidential  counsellor,  solicitor,  or 
attorney,  of  the  party,  cannot  be  compelled  to  disclose  papers 
delivered,  or  communications  made  to  him,  or  letters  or  entries 
made  by  him,  in  that  capacity.^     "  This  protection,"  said  Lord 

1  [Infra],  §§  326-429.  Id.  89;  Kelway  v.  Kelway,  Id.  127;  Den- 

2  In  Greenough  v.  Gaskell,  1  My.  &  nis  v.  Codrington,  Id.  148  ;  all  which  are 
K.  101.  In  this  decision,  the  Lord  Chan-  stated  at  large  by  Mr.  Metcalf,  in  his 
cellor  was  a.ssisted  by  consultation  with  notes  to  2  Stark.  Evid.  395  (1st  Am.  ed.). 
Lord  Lyndhurst,  Tindal,  C.  J.,  and  See  also  12  Vin.  Abr.  Evid.  E,  a ; 
Parke,  J.,  4  B.&.  Ad.  876.  And  it  is  men-  Wilson  v.  Kastall,  4  T.  R.  753  ;  Rex  v. 
tioned,  as  one  in  wiiich  all  the  authori-  Withers,  2  Campb.  578;  Wilson  r.  Troup, 
ties  liave  been  reviewed,  in  2  M.  &  W.  7  Johns.  Ch.  2-3  ;  2  Cowen,  195  ;  Mills  y. 
100,  per  Lord  Abingcr,  and  is  cited  in  Oddy,  6  C.  &  P.  728;  Anon.,  8  Mass.  370; 
Russell  f.  Jackson,  15  Jur.  1117,  as  set-  AValker  w.  Wildman,  6  Madd.  47;  Story's 
tling  the  law  on  this  subject.  See,  also,  Eq.  PI.  458-4()l  ;  Jackson  v.  Burtis,  14 
16  Jur.  30,  41-43,  where  the  cases  on  Johns.  391;  Foster  v.  Hall,  12  Pick.  89; 
this  subject  are  reviewed.  The  earliest  Chirac  w.  Reinicker,  11  Wheat.  295;  Rex 
reported  case  on  this  subject  is  that  of  v.  Shaw,  6  C.  &  P.  372  ;  Granger  v.  War- 
Berd  v.  Lovelace,  19  Eliz.,  in  chancery,  rington,  8  Gilm.  299;  Wheeler  v.  Hill,  4 
Gary's  R.  88.     See  also  Austen  v.  Vesey,  Shepl.  329. 


CHAP.  Xin.]      EVIDENCE  EXCLUDED  FEOM  PUBLIC  POLICY.         277 

Chancellor  Brougham,  "  is  not  qualified  by  any  reference  to  pro- 
ceedings pending,  or  in  contemplation,  If,  touching  matters  that 
come  within  the  ordinary  scope  of  professional  emj^loyment,  they 
receive  a  communication  in  their  professional  capacity,  either 
from  a  client,  or  on  his  account  and  for  his  benefit,  in  the  trans- 
action of  his  business,  or,  which  amounts  to  the  same  thing,  if 
they  commit  to  paper  in  the  course  of  their  employment  on  his 
behalf  matters  which  they  know  only  through  their  professional 
relation  to  the  client,  they  are  not  only  justified  in  withholding 
such  matters,  but  bound  to  withhold  them,  and  will  not  be  com- 
pelled to  disclose  the  information,  or  produce  the  papers,  in  any 
court  of  law  or  equity,  either  as  party  or  as  witness."  ^ 

§  238.  Reason  of  the  rule.  "  The  foundation  of  this  rule,"  he 
adds,  "  is  not  on  account  of  any  particular  importance  which  the 
law  attributes  to  the  business  of  legal  professors,  or  any  particu- 
lar disposition  to  afford  them  protection.  But  it  is  out  of  regard 
to  the  interests  of  justice,  which  cannot  be  upholden,  and  to  the 
administration  of  justice,  which  cannot  go  on,  without  the  aid  of 
men  skilled  in  jurisprudence,  in  the  practice  of  the  courts,  and  in 
those  matters  affecting  rights  and  obligations,  which  form  the 
subject  of  all  judicial  proceedings."  ^  If  such  communications 
were  not  protected,  no  man,  as  the  same  learned  judge  remarked 
in  another  case,  would  dare  to  consult  a  professional  adviser,  with 
a  view  to  his  defence,  or  to  the  enforcement  of  his  rights  ;  and 
no  man  could  safely  come  into  a  court,  either  to  obtain  redress,  or 
to  defend  himself.^ 


^  Greenough  v.  Gaskell,  1  My.  &  K.  duties  of  citizens  are  governed,  so  impor- 

102, 103.    The  privilege  is  lield  to  extend  tant  is  it  they  should  he   permitted  to 

to  every  communication  made  hy  a  client  avail  themselves  of  the  superior  skill  and 

to  his  attorney,  though   made  under  a  learning  of  those  who  are  sanctioned  by 

mistaken  belief  of  its  being  necessary  to  the  law  as  its  ministers  and  expounders, 

his  case.     Cleave  v.  Jones,  8  Eng.  Law  &  both  in  ascertaining  their  rights  in  the 

Eq.  554,  per  Martin,  B.     And  see  Aikin  country,    and    maintaining    them    most 

V.  Kilburne,  14  Shepl.  252.  safely    in    courts,    without    publishing 

2  ["  It  is  to  be  remembered,  whenever  those  facts  which  they  have  a  right  to 

a  question  of  this  kind  arises,  that  com-  keep  secret,  but  which  must  be  disclosed 

munications  to  attorneys  and  counsel  are  to  a  legal  adviser  and  advocate  to  enable 

not  protected  from  disclosure  in  court,  for  him   successfully  to  perform  the  duties 

the  reason  that  they  are  made  confiden-  of  his  office,  that  the  law  has  considered 

tially;  for  no  such  protection  is  given  it  the  wisest   policy  to   encourage   and 

to  confidential  communications  made  to  sustain  this  confidence,  by  requiring  that 

members   of    other   professions.      '  The  on  such  facts  the  mouth  of  the  attorney 

principle  of  the  rule,  which  applies  to  shall  be   for  ever  sealed.'"      By   Met- 

attorneys  and  counsel,'  says  Chief  Jus-  calf,  J.,  in  Barnes  v.  Harris,  7  Cush.  576, 

tice    Shaw,  in  Hatton  v.  Robinson,   14  578.] 

Pick.  422,  'is,  that  so  numerous  and  com-  3  Bolton  v.  The  Corporation  of  Liver- 

plex  are  the  laws  by  which  the  rights  and  pool,   1  My.  &  K.  94,  95.     "  This  rule 


278 


LAW   OF  EV3DEXCE. 


[PABT  n. 


§  239.  Communications  to  legal  adviser  only  protected.  In  re- 
gard to  the  persons  to  whom  the  communications  must  have 
been  made,  in  order  to  be  thus  protected,  they  must  have  been 
made  to  the  counsel,  attorney,  or  solicitor,  acting,  for  the  time  be- 
ing, in  the  character  of  legal  adviser.^  For  the  reason  of  the  rule, 
having  respect  solely  to  the  free  and  unembarrassed  administra- 
tioa  of  justice,  and  to  security  in  the  enjoyment  of  civil  rights, 
does  not  extend  to  things  confidentially  communicated  to  other 
persons,  nor  even  to  those  which  come  to  the  knowledge  of  coun- 
sel, when  not  standing  in  that  relation  to  the  party.  Whether 
he  be  called  as  a  witness,  or  be  made  defendant,  and  a  discovery 
sought  from  him,  as  such,  by  bill  in  chancery,  whatever  he  has 
learned,  as  counsel,  solicitor,  or  attorney,  he  is  not  obliged  nor 
permitted  to  disclose. ^  And  this  protection  extends  also  to  all 
the  necessary  organs  of  communication  between  the  attorney  and 
his  client ;  an  interpreter  ^  and  an  agent  *  being  considered  as 
standing  in  precisely  the  same  situation  as  the  attorney  himself, 


seems  to  be  correlative  with  that  which 
governs  the  summary  jurisdiction  of  the 
courts  over  attorneys.  In  Ex  parte  Aiken 
(4  B.  &  Aid.  49;  see  also  Ex  parte  Yeat- 
man,  4  Dowl.  P.  C.  309),  that  rule  is  laid 
down  thus :  '  Where  an  attorney  is  em- 
ployed in  a  matter  wholly  unconnected 
with  his  professional  character,  the  court 
will  not  interfere  in  a  summary  way  to 
compel  him  to  execute  faithfully  the 
trust  reposed  in  him.  But  where  the 
employment  is  so  connected  with  his 
professional  character  as  to  afford  a  pre- 
sumption that  his  character  formed  the 
ground  of  his  employment  by  the  client, 
there  the  court  will  exercise  this  juris- 
diction.' So,  where  the  communication 
made  relates  to  a  circumstance  so  con- 
nected with  the  employment  as  an  attor- 
ney, that  the  character  formed  tlie 
ground  of  the  communication,  it  is  privi- 
leged from  disclosure."  Per  Alderson,  J., 
in  Tirquand  v.  Knight,  2  AI.  &  W.  101. 
Tie  Roman  law  rejected  the  evidence 
of  the  procurator  and  the  advocate,  in 
nearly  tlie  same  cases  in  which  the  com- 
mon law  liolds  them  incompetent  to  tes- 
tify ;  but  not  for  the  same  reasons  ;  the 
latter  regarding  the  general  interest  of 
the  community,  as  stated  in  tlie  text, 
while  the  former  seems  to  consider  them 
as  not  credible,  because  of  the  identity 
of  tiieir  interest,  opinions,  and  preju- 
dices, with  those  of  their  clients.  Mas- 
card.  De  Probat.  vol.  i.  Concl.  6(5,  vol.  iii. 


Concl.  1239 ;  P.  Farinacii  Opera,  torn.  2, 
tit.  6,  Quajst.  60,  lUat.  5,  6. 

1  If  the  party  has  been  requested  to 
act  as  solicitor,  and  the  communication 
is  made  under  the  impression  that  the 
request  has  been  acceded  to,  it  is  privi- 
leged. Smith  V.  Fell,  2  Curt.  G67  [Sar- 
gent V.  Hampden,  38  Maine,  581;  McLel- 
lan  V.  Longfellow,  32  Id.  494].  See,  as 
to  consultation  by  the  party's  wife,  Eeg. 
V.  Farley,  2  Car.  &  Kir.  313.  One  who 
is  merely  a  real-estate  broker,  agent,  and 
conveyancer  is  not  a  legal  adviser.  Mat- 
thews's  Estate,  4  Amer.  Law  Journ.  n.  s. 
356.  [Communications  with  any  other 
person,  in  contemplation  of  litigation, 
may  or  may  not  be  privileged,  in  the  dis- 
cretion of  the  court.  If  they  are  notes 
of  the  cases  to  be  laid  before  counsel,  or 
to  supply  proof  to  be  inserted  in  the 
brief,  they  ought  to  be  held  privileged  ; 
otherwise,  if  they  fall  short  of  tiiis.  Fen- 
ner  v.  Lon.  &  S.  E.  R.  R.  Co.,  7  L.  R.  Q.  B. 
767.] 

2  Greenough  v.  Gaskell,  1  My.  &  K. 
95 ;  Wilson  v.  Rastall,  4  T.  R.  753. 

8  Du  Barre  v.  Livette,  Peake's  Cas. 
77,  explained  in  4  T.  R.  756 ;  Jackson  v. 
Frencii,  3  Wend.  337  ;  Andrews  v.  Solo- 
mon, 1  Pet.  C.  C.  356 ;  Parker  v.  Carter, 
4  Munf.  273. 

*  Perkins  v.  Hawkshaw,  2  Stark.  239; 
Tait  on  Evid.  385;  Bunbury  u.  Bunbury, 
2  Beav.  173  ;  Steele  v.  Stewart.  1  Phil. 
Ch.  471;  Carpmael  i;.  Powis,  1  Phil.  Ch. 
687  ;  8.  0.  9  Beav.  10. 


CHAP.  Xin.J      EVIDENCE  EXCLUDED  FKOM  PUBLIC  POLICY.        279 

and  under  the  same  obligation  of  secrecy.  It  extends  also  to 
a  case  submitted  to  counsel  in  a  foreign  country^  and  his  opinion 
thereon.i  It  was  formerly  thought  that  an  attorney'' s  or  a  barris- 
ter''s  clerk  was  not  within  the  reason  and  exigency  of  the  rule  ; 
but  it  is  now  considered  otherwise,  from  the  necessity  they  are 
under  to  employ  clerks,  being  unable  to  transact  all  their  business 
in  person ;  and  accordingly  clerks  are  not  compellable  to  disclose 
facts,  coming  to  their  knowledge  in  the  course  of  their  employment 
in  that  capacity,  to  which  the  attorney  or  barrister  himself  could 
not  be  interrogated.^  And  as  the  privilege  is  not  personal  to  the 
attorney,  but  is  a  rule  of  law,  for  the  protection  of  the  client, 
the  executor  of  the  attorney  seems  to  be  within  the  rule,  in  regard 
to  papers  coming  to  liis  hands,  as  the  personal  representative  of 
the  attorney.^ 


1  Bunbury  v.  Biinbury,  2  Beav.  173. 

2  Taylor  v.  Foster,  2  C.  &  V.  195,  per 
Best,  J.,  cited  and  approved  in  12  Pick. 
93 ;  Rex  v.  Upper  Boddington,  8  Dow.  & 
Ky.  726,  per  Bayley,  J. ;  Foote  v.  Hayne, 
1  C.  &  P.  545,  per  Abbott,  C.  J. ;  s.  c.  R. 
&  M.  165;  Jackson  i;.  French,  3  Wend. 
337;  Power  v.  Kent,  1  Cowen,  211;  Bow- 
man I'.  Norton,  5  C.  &  P.  177  ;  Shore  v. 
Bedford,  5  M.  &  Gr.  271 ;  Jardine  v.  Sher- 
idan, 2  C.  &  K.  24  [Sibley  r.  Waffle,  16 
N.  Y.  Ct.  App.  180  ;  Landsberger  v.  Gor- 
ham,  5  Cai.  450.  Communications  made 
while  seeking  legal  advice  in  a  consul- 
tation witli  a  student  at  law  in  an  attor- 
ney's office,  he  not  being  the  agent  or 
clerk  of  the  attorney  for  any  purpose,  are 
not  protected.  Barnes  v.  Harris,  7  Gush. 
676,  578.  See  also  Holman  v.  Kimball,  22 
Vt.  655]. 

3  Fenwick  v.  Reed,  1  Meriv.  114,  120, 
arg.  [Tlie  decisions  upon  this  point  are 
very  numerous  in  the  American  States. 
It  seems  indispensable  to  the  existence 
of  the  privilege,  that  the  relation  of 
counsel  or  attorney  and  client  should 
exist,  and  that  tlie  commimication  be 
made  in  faith  of  the  relation.  And  then 
the  privilege  of  secrecy  only  extends  to 
the  parties  to  the  relation  and  their  nec- 
essary agents  and  assistants.  Hence  tlie 
privilege  does  not  attach,  if  one  is  acci- 
dentally present,  Goddard  v.  Gardner, 
28  Conn.  172;  or  casually  overhears  the 
conversation,  Hoy  v.  Morris,  13  Gray, 
619  ;  or  if  the  person  be  not  a  member 
of  the  profession,  although  supposed  to 
be  so  by  the  client.  Sample  v.  Frost,  10 
Iowa,  266  ;  or  if  he  was  acting  as  a  mere 
scrivener,  although  of  the  legal  profes- 
sion, De  Wolf  V.  Strader,  26  111.  225; 


Borum  v.  Fonts,  15  Ind.  50 ;  Coon  v. 
Swan,  30  Vt.  6.  And  the  privilege 
against  disclosure  extends  to  the  client 
as  much,  and  to  the  same  extent,  as  to 
his  professional  adviser.  Hemenway  v. 
Smith,  28  Vt.  701.  Hence  counsel  may 
be  compelled  to  produce  any  paper 
which  the  client  might  be  required  to  do. 
Andrews  v.  Ohio  &  Miss.  li.  R.  Co.,  14 
Ind.  169;  Durkee  v.  Leland,  4  Vt.  612. 
And  facts  coming  to  the  knowledge  of 
counsel,  without  communication  from 
tlieir  clients,  by  being  present  merely, 
when  a  legal  document  is  executed  (Pat- 
ten V.  Moor,  9  Foster,  163),  are  not  privi- 
leged. So,  also,  that  the  testator  was  too 
imbecile  to  make  communications  to 
counsel,  when  they  met,  is  not  a  privi- 
leged fact.  Daniel  v.  Daniel,  39  Penn. 
St.  191.  So  communications  made  by 
the  trustee  to  counsel,  in  regard  to  the 
trust,  are  not  privileged  from  being 
proved  by  the  counsel,  in  a  suit  between 
tiie  cestui  que  trust  and  the  trustee  affect- 
ing the  trust,  Shean  v.  Philips,  1  F.  &  F. 
449;  or  when  made  by  a  nominal  party, 
to  a  professional  person,  but  not  made 
professionally,  Allen  v.  Harrison,  30  Vt. 
219  ;  Marsh  v.  Howe,  36  Barb.  649.  But 
it  is  not  indispensable  the  communica- 
tion should  be  made  after  the  actual 
retainer,  provided  it  be  made  in  c  mfi- 
dence  of  the  professional  character,  and 
with  a  hona^fide  purpose  of  obtaining  pro- 
fessional aid  and  direction.  Sargent 
V.  Hampden,  38  Me.  581.  But  a  com- 
munication made  to  counsel  by  two 
defendants  is  not  privileged  from  disclo- 
sure in  a  subsequent  suit  between  the 
two.  Rice  V.  Rice,  14  B.  Mon.  417. 
Counsel  are  not  privileged  from  disclos- 


280 


LAW  OF  EVIDENCE. 


[taut  n. 


§  240.  Extent  of  the  protection.  This  protection  extends  to 
every  communication  which  the  client  makes  to  his  legal  adviser, 
for  tlie  purpose  of  professional  advice  or  aid,  upon  the  subject  of 
his  rights  and  liabilities.^  Nor  is  it  necessary  that  any  judicial 
proceedings  in  particular  should  have  been  commenced  or  con- 
templated ;  it  is  enough  if  the  matter  in  hand,  like  every  other 
human  transaction,  may,  by  possibility,  become  the  subject  of 
judicial  inquiry.  "  If,"  said  Lord  Chancellor  Brougham,  "  the 
privilege  were  confined  to  communications  connected  with  suits 
begun,  or  intended,  or  expected,  or  apprehended,  no  one  could 
safely  adopt  such  precautions,  as  might  eventually  render  any 
proceedings  successful,  or  all  proceedings  superfluous."  ^  Whether 
the  party  himself  can  be  compelled,  by  a  bill  in  chancery,  to  pro- 
duce a  case  which  he  has  laid  before  counsel,  with  the  opinion 
given  thereon,  is  not  perfectly  clear.  At  one  time  it  was  held  by 
the  House  of  Lords,  that  he  might  be  compelled  to  produce  the 
case  which  he  had  sent,  but  not  the  opinion  winch  he  had  re- 
ceived.3  This  decision,  however,  was  not  satisfactory ;  and 
though  it  was  silently  followed  in  one  case,*  and  reluctantly  sub- 
mitted to  in  another,^  yet  its  principle  has  since  been  ably 
controverted  and  refuted.^     The  great  object  of  the  rule  seems 


ing  facts  tending  to  establish  a  fraudu- 
lent combination  between  himself  and 
his  client,  in  order  to  prevent  the  court 
from  compelling  the  production  of  im- 
portant papers  (People  v.  Sheriff  of  New 
York,  20  Barb.  C'22),  since  neither  coun- 
sel nor  client  liave  any  legal  riglit  to  resort 
to  any  but  legal  means  for  obtainhig  a 
decision  in  tlieir  favor.  And  it  is  upon 
the  same  ground  that  counsel  have  been 
held  not  privileged  from  disclosing  the 
fact  of  a  payment  made  to  the  client, 
and  communicated  by  him  to  the  attor- 
ney, for  tlie  purpose  of  having  tiie  appli- 
cation nia<lc,  the  client  having  deceased, 
since  this  is  not  in  any  sense  a  profes- 
eional  confidence.  Clark  v.  llichards,  3 
E.  D.  Smith,  80.] 

1  This  general  rule  is  limited  to  com- 
munications having  a  lawful  object ;  for, 
if  the  iim-pose  contemplated  be  a  viola- 
tion of  law,  it  lias  been  deemed  not  to  be 
within  the  rule  of  privileged  connnunica- 
tions  ;  because  it  is  not  a  solicitor's  duty 
to  contrive  fraud,  or  to  advise  his  client 
as  to  the  means  of  evading  the  law.  IJus- 
sell  V.  Jackson,  IT)  Jur.  1117;  IJaiik  of 
Utlca  V.  Merscreau,  3  Barb.  C'li.  528 
Uiartside  v.  Outran),  26  L.  J.  Ch.  116; 
Charlton  v.  Coombs,  32  L.  J.  Ch.  284]. 


2  1  M.  &  K.  102,  103;  Carpmael  v. 
Powis,  9  Beav.  16  ;  1  Phillips,  687  ;  Pen- 
ruddock  V.  Hammond,  11  Beav.  59.  See 
also  the  observations  of  the  learned 
judges,  in  Cromack  v.  Heathcote,  2  Brod. 
&  B.  4,  to  the  same  effect ;  Gresley's 
Evid.  32,  33;  Storv's  Eq.  PI.  §  000; 
Moore  v.  Terrell,  4  B.  &  Ad.  870;  Beltz- 
hoover  v.  Blackstock,  3  Watts,  20;  Tay- 
lor V.  Blacklow,  3  Bing.  N.  C.  235  ;  Foster 
r.  Hall,  12  Pick.  80,  02,  90,  where  the 
English  decisions  on  this  subject  arc 
fully  reviewed  bv  the  learned  Chief 
Justice;  Doe  v.  Harris,  5  C.  &  P.  502; 
Walker  r.  Wildman,  0  iMadd.  47.  There 
are  some  decisions  which  require  that  a 
suit  he  either  pending  or  anticii)ated. 
See  Williams  i'.  Mundie,  Rv.  &  M.  34; 
Broad  i'.  Pitt,  3  C.  cfe  P.  518;  Duthn  r. 
Smith,  Peake's  Cas.  108.  But  tliese  are 
now  overruled.  See  Pearse  v.  I'ear.-^e, 
11  Jur.  52;  s.  c.  1  De  Ce.x  &  Smale,  12. 
The  law  of  Scotland  is  the  same  in  this 
matter  as  that  of  England.  Tait  on  Evid. 
384. 

3  Kadcliffe  v.  Fursman,  2  Bro.  P.  C. 
514. 

<  Preston  v.  Carr,  1  Y.  &  Jer.  175. 
*  Newton  v.  Beresford,  1  You.  37G. 
0  In  Bolton  v.  Corp.  of  Liverpool,  1 


CHAP.  Xm.]      EVIDENCE  EXCLUDED  FROM  PUBLIC  POLICY.         281 

plainly  to  require  that  the  entire  professional  intercourse  between 
client  and  attorney,  whatever  it  may  have  consisted  in,  should 
be  protected  by  profound  secrecy.^ 


My.  &  K.  88,  per  Lord  Chancellor 
Brougham  ;  and  in  Pearse  v.  Pearse,  11 
Jur.  52,  by  Knight  Bruce,  V.  C.  [A 
party  will  not  be  compelled  to  produce 
muniments  of  title  which  he  swears  do 
not,  according  to  his  best  knowledge,  in- 
formation, and  belief,  contain  any  thing 
impeaching  his  case,  or  supporting  or 
material  to  tlie  cause  of  his  adversary. 
Minet  v.  Morgan,  8  L.  R.  Oh.  S61,  declin- 
ing to  follow  Bolton  V.  Corp.  of  Liver- 
pool, so  far  as  it  is  to  the  contrarj'.]  In 
the  following  observations  of  this  learned 
judge  we  have  the  view  at  present  taken 
of  this  vexed  question  in  England.  "  Tliat 
cases  laid  before  counsel,  on  belialf  of  a 
client,  stand  upon  the  same  footing  as 
other  professional  communications  from 
the  client  to  the  counsel  and  solicitor,  or 
to  either  of  them,  may,  I  suppose,  be  as- 
sumed ;  and  tliat,  as  far  as  any  discovery 
by  the  solicitor  or  counsel  is  concerned, 
tlie  question  of  the  existence  or  non- 
existence of  any  suit,  claim,  or  dispute, 
is  immaterial, —  the  law  providing  for  the 
client's  protection  in  each  state  of  circum- 
stances, and  in  eacli  equally,  is,  I  suppose, 
not  a  disputable  point.  I  suppose  Cro- 
mack  V.  Heathcote  (2  Brod.  &  Bing.  4) 
to  be  now  universally  acceded  to,  and 
the  doctrine  of  this  court  to  have  been 
correctly  stated  by  Lord  Lyndimrst,  in 
Herring  v.  Clobery  (1  Plul.  91),  when  he 
said,  'I  lay  down  this  rule  with  reference 
to  this  cause,  tliat,  where  an  attorney  is 
employed  by  a  client  professionally  to 
transact  professional  business,  all  the 
communications  that  pass  between  the 
client  and  the  attorney,  in  the  course 
and  for  the  purpose  of  that  business,  are 
privileged  communications,  and  tliat  the 
privilege  is  the  privilege  of  the  client, 
and  not  of  the  attorney.'  This  I  take  to 
be  not  a  peculiar  but  a  general  rule  of 
jurisprudence.  The  civil  law,  indeed, 
considered  the  advocate  and  client  so 
identified  or  bound  together,  that  the 
advocate  was,  I  believe,  generality  not 
allowed  to  be  a  witness  for  the  client. 
'  Ne  patroni  in  causa,  cui  patrocinium 
praestiterunt,  testimonium  dicant,'  savs 
the   Digest   (Dig.  lib.  22,  tit.  5,  1.  2o). 


An  old  jurist,  indeed,  appears  to  have 
thought,  that,  by  putting  an  advocate  to 
the  torture,  he  might  have  made  a  good 
witness  for  his  client;  but  this  seems  not 
to  have  met  with  general  apjirobation. 
Professors  of  the  law,  probably,  were 
not  disposed  to  encourage  the  dogma 
practically.  Voet  puts  the  communica- 
tions between  a  client  and  an  advocate 
on  the  footing  of  those  between  a  peni- 
tent and  his  priest.  He  says:  'Non  etiam 
advocatus  aut  procurator  in  ea  causa  cui 
patrocinium  prasstitit  aut  procurationem, 
idoneus  testis  est,  sive  pro  cliente  sive 
contra  eum  producatur;  saltern  non  ad 
id,  ut  pandere  cogeretur  ea,  quag  non 
aliunde  quam  ex  revelatione  clientis, 
comperta  habct ;  eo  modo,  quo,  et  sac- 
erdoti,  revelare  ea  qure  ex  auriculari 
didicit  confessione,  nofas  est.'  Now, 
whether  laying  or  not  laying  stress  on 
the  observations  made  by  tlie  late  Lord 
Chief  Baron,  in  Knight  ;;.  Lord  Water- 
ford  (2  Y.  &  C.  40,  41),  — observations, 
I  need  not  say,  well  worthy  of  attention, 
—  I  confess  myself  at  a  loss  to  perceive 
any  substantial  difference,  in  point  of 
reason  or  principle  or  convenience,  be- 
tween the  liability  of  the  client  and  that 
of  his  counsel  or  solicitor,  to  disclose  the 
client's  communications  made  in  confi- 
dence professionally  to  either.  True, 
the  client  is,  or  may  be  compellable,  to 
disclose  all  that,  before  he  consulted  the 
counsel  or  solicitor,  he  knew,  believed, 
or  had  seen  or  heard;  but  tiie  question  is 
not,  I  apprehend,  one  as  to  the  greater 
or  less  probability  of  more  or  less  dam- 
age. The  question  is,  I  suppose,  one  of 
principle,  —  one  that  ought  to  be  decided 
according  to  certain  rules  of  jurispru- 
dence ;  nor  is  the  exemption  of  the  solici- 
tor or  counsel  from  compulsory  discovery 
confined  to  advice  given  or  opinions 
stated.  It  extends  to  facts  communi- 
cated by  the  client.  Lord  Eldon  has 
said  (19  Ves.  267):  'The  case  might 
easih'  be  put,  that  a  most  honest  man, 
so  ciianging  his  situation,  might  commu- 
nicate a  fact,  appearing  to  him  to  have 
no  connection  with  the  case,  and  yet  the 
whole  title  of  his  former  client  might  de- 


^  Thus,wliat  tlie  attorney sau', namely,     ined  or  cross-examined  as  to  conversa- 


the  destruction  of  an  instrument,  was  held 
privileged.  Robson  r.  Kemp,  5  Esp.  52. 
[A  party  who  testifies  himself,  and  also 
calls  as  a  witness  one  who  has  been  his 
legal  counsel,  who,  however,  is  not  exam- 


tions  with  his  client,  may  oliject,  wlien 
tlie  same  counsel  is  called  as  a  witness 
for  the  other  party,  to  his  testifying  in 
regard  to  such  conversations.  Mont- 
gomery V.  Pickering,  116  Mass.  227.1 


282 


LAW   OF  EVIDENCE. 


[PAET  n. 


§  240  a.  Opinion  of  counsel  protected.     In  regard  to  the  obli- 
gation of  tlie  party  to  discover  and  produce  the  opinion  of  coun- 


pend  on  it.  Though  Sir  John  Strange's 
opinion  was,  that  an  attorney  might,  if 
he  pleased,  give  evidence  of  his  client's 
secrets,  I  take  it  to  be  clear,  that  no 
court  would  permit  him  to  give  such  evi- 
dence, or  would  have  any  difiBculty,  if  a 
solicitor,  voluntarily  changing  his  situa- 
tion, was,  in  his  new  character,  proceed- 
ing to  communicate  a  material  fact.  A 
short  way  of  preventing  him  would  be, 
by  striking  him  off  the  roll.'  But  as  to 
damage  :  a  man,  having  laid  a  case  be- 
fore counsel,  may  die,  leaving  all  the 
rest  of  mankind  ignorant  of  a  blot  on  his 
title  stated  in  the  case,  and  not  discover- 
able by  any  other  means.  The  whole 
fortunes  of  his  family  may  turn  on  the 
question,  whether  the  case  shall  be  dis- 
covered, and  may  be  subverted  by  its 
discovery.  Again,  the  client  is  certainly 
exempted  from  liability  to  discover  com- 
munications between  himself  and  his 
counsel  or  solicitor  after  litigation  com- 
menced, or  after  tlie  commencement  of 
a  dispute  ending  in  litigation ;  at  least, 
if  they  relate  to  the  dispute,  or  matter  in 
dispute.  Upon  this  I  need  scarcely  refer 
to  a  class  of  authorities,  to  which  Hughes 
V.  Biddulph  (4  Russ.  1*30),  Nias  v.  North- 
ern and  Eastern  Railway  Company  (3 
Myl.  &  Cr.  355),  before  the  present  Lord 
Chancellor,  in  his  former  chancellorship, 
and  Holmes  v.  Baddeley  (1  Phil.  470), 
decided  by  Lord  Lyndhurst,  belong.  But 
what,  for  the  purpose  of  discovery,  is 
the  distinction  in  point  of  reason,  or  prin- 
ciple, or  justice,  or  convenience,  between 
such  communications  and  those  which 
differ  from  them  only  in  tliis,  that  they 
precede,  instead  of  f<jllowing,  the  actual 
arising,  not  of  a  cause  for  dispute,  but 
of  a  dispute,  I  have  never  hitherto  been 
able  to  perceive.  A  man  is  in  possession 
of  an  estate  as  owner;  ho  is  not  under 
any  liiluciary  obligation;  he  finds  a  flaw, 
or  a  supposeil  flaw,  in  his  title,  which  it 
is  not,  in  poiiit  of  law  or  equity,  his  duty 
to  disclose  to  any  person  ;  lie  believes 
that  the  flaw  or  sujiposed  defect  is  not 
known  to  tlie  only  person,  who,  if  it  is  a 
defect,  is  cntitii'd  to  take  advantage  of 
it,  but  that  tliis  person  may  proliably  or 
possibly  soon  hear  of  it,  and  tlien  insti- 
tute a  suit,  or  make  a  claim.  Under  this 
apprehension  he  consults  a  solicitor,  and, 
through  tin-  solicitor,  lays  a  case  before 
counsel  on  the  subject,  and  receives  his 
opinion.  Some  time  afterwards  the  ap- 
prehended adversary  becomes  an  actual 
adversary,  for,  coming  to  the  knowledge 
of  the  defect  or  supposed  flaw  in  tlie 
title,  he  makes  a  claim,  and,  after  a  pre- 


liminary correspondence,  commences  a 
suit  in  equity  to  enforce  it;  but  between 
the  commencement  of  the  correspond- 
ence and  the  actual  institution  of  the 
suit,  the  man  in  possession  again  con- 
sults a  solicitor,  and  through  him  again 
lays  a  case  before  counsel.  According 
to  the  respondent's  argument  before 
me  on  this  occasion,  the  defendant,  in 
the  instance  that  I  have  supposed,  is  as 
clearly  bound  to  disclose  the  first  consul- 
tation and  the  first  case,  as  he  is  clearly 
exempted  from  discovering  the  second 
consultation  and  the  second  case.  I 
have,  I  repeat,  yet  to  learn  that  such  a 
distinction  has  any  foundation  in  reason 
or  convenience.  The  discover}-  and  vin- 
dication and  establishment  of  truth  are 
main  purposes,  certainly,  of  the  exist- 
ence of  courts  of  justice;  still,  for  the 
obtaining  of  these  objects,  which,  how- 
ever valuable  and  important,  cannot  be 
usefully  pursued  without  moderation, 
cannot  be  either  usefully  or  creditably 
pursued  unfairly,  or  gained  by  unfair 
means,  —  not  every  channel  is  or  ought  to 
be  open  to  them.  The  practical  ineffi- 
cacy  of  torture  is  not,  1  suppose,  the 
most  weighty  objection  to  that  mode  of 
examination  ;  nor,  probably,  would  the 
purpose  of  the  mere  disclosure  of  truth 
have  been  otherwise  than  advanced  by  a 
refusal  on  the  part  of  the  Lord  Chancel- 
lor, in  1815,  to  act  against  the  solicitor, 
who,  in  the  cause  between  Lord  Chol- 
mondeley  and  Lord  Clinton,  had  acted  or 
proposed  to  act  in  the  manner  which 
Lord  Eldon  thought  it  right  to  prohibit. 
Truth,  like  all  other  good  things,  may  be 
loved  unwisely,  may  be  pursued  too 
keenly,  may  cost  too  much.  And  surely 
the  meanness  and  the  mischief  of  prying 
into  a  man's  confidential  consultations 
wit!i  his  legal  adviser,  the  general  evil  of 
infusing  reserve  and  dissimulation,  un- 
easiness and  suspicion  and  fear,  into 
those  communications  which  must  take 
place,  and  which,  unless  in  a  condition  of 
perfect  security,  must  take  place  use- 
lessly or  worse,  are  too  great  a  price 
to  pay  for  truth  itself."  See  11  .Jiir. 
pp.  64,  55;  1  De  Gex  &  Smale,  25-29. 
[And  in  Minet  v.  Morgan,  8  L.  R.  Ch. 
301,  Rearse  i'.  Pcarse,  8  L.  J.  Ch.  301,  and 
Lawrence  v.  Campbell,  4  Drew.  485,  were 
approved,  and  all  the  former  decisions 
reviewed.  Antl  it  was  distinctly  held, 
that  a  plaintiff  will  not  be  compelled  to 
produce  confidential  correspondence  be- 
tween himself  or  his  predecessors  in 
title  and  their  several  solicitors,  with 
respect  to  questions  connected  with  mat- 


CHAP.  Xm.]      EVIDENCE  EXCLUDED  FROM  PTJBLIC  POLICY.         283 

sel,  various  distinctions  have  been  attempted  to  be  set  up,  in 
favor  of  a  discovery  of  communications  made  before  litigation, 
though  in  contemplation  of,  and  with  reference  to,  such  litigation, 
which  afterwards  took  place  ;  and  again,  in  respect  to  communi- 
cations which,  though  in  fact  made  after  the  dispute  between  the 
parties,  which  was  followed  by  litigation,  were  yet  made  neither 
in  contemplation  of,  nor  with  reference  to,  such  litigation ;  and 
again,  in  regard  to  communications  of  cases  or  statements  of  fact, 
made  on  behalf  of  a  party  by  or  for  his  solicitor  or  legal  adviser, 
on  the  subject-matter  in  question,  after  litigation  commenced,  or 
in  contemplation  of  litigation  on  the  same  subject  with  other 
persons,  with  the  view  of  asserting  the  same  right ;  but  all  these 
distinctions  have  been  overruled,  and  the  communications  held 
to  be  within  the  privilege.^  And  where  a  cestui  que  trust  filed 
a  bill  against  his  trustee,  to  set  aside  a  purchase  by  the  latter  of 
the  trust  property,  made  thirty  years  back ;  and  the  trustee  filed 
his  cross-bill,  alleging  that  the  cestui  que  trust  had  long  known 
his  situation  in  respect  to  the  property,  and  had  acquiesced  in 
the  purchase,  and  in  proof  thereof  that  he  had,  fifteen  years  be- 
fore, taken  the  opinion  of  counsel  thereon,  of  which  he  prayed  a 
discovery  and  production, — it  was  held  that  the  opinion,  as  it  was 
taken  after  the  dispute  had  arisen  which  was  the  subject  of  the 
original  and  cross  bill,  and  for  the  guidance  of  one  of  the  parties 
in  respect  of  that  very  dispute,  was  privileged  at  the  time  it  was 
taken ;  and  as  the  same  dispute  was  still  the  subject  of  the  litiga- 
tion, the  communication  still  retained  its  privilege. ^     But  where 

ters  in  dispute  in  the  suit,  altliough  made  and  therefore  he  compelled  the  son  and 

before  any  litigation  was  contemplated,  heir  to  discover  a  case,  whicli  had  been 

Wlien  the  attorney  acts  for  two  parties  submitted  to  counsel  by  his  father,  and 

in  a  negotiation,  as  for  mortgagor  and  had  come,  with  the  estate,  to  his  hands, 

mortgagee,  what   comes   to  liim   as   an  Greenlaw  v.  King,  1  Beavan,  137.     But 

attorney  for  eitlier  is  protected.     Doe  v.  his   opinion,    on   the    general    question, 

AVatkins,    3   Bing.    N.    C.   421;    Doe    v.  whether  the  party  is  bound  to  discover  a 

Seaton,  2  A.  &  E.  171;  Regnell  v.  Sprye,  case  submitted  to  his  counsel,  is  known 

10  Ceav.  51.]     See  also  Gresley  on  Evid.  to  be  opposed  to  that  of  a  majority  of 

82,  33;  Bishop  of  Meath  v.  Marquis  of  the  English  judges,  though  still  retained 

Winchester,  10  Bing.  330,  375,  454,  4.55  ;  by  himself.     See  Crisp  v.  Platol,  6  Beav. 

Nias  V.  The  Northern,  &c.  Railway  Co.,  62;  Reece  v.  Trye,  9  Beav.  316,318,319; 

3  My.  &  C.  355,  357 ;  Bimbury  v.  Bun-  Peile  v.  Stocl^lart,  13  Jur.  373. 
bury,  2  Beav.  173 ;  Herring  v.  Clobery,  ^  Lord   Walsingham  v.  Goodricke,  3 

1   Turn.    &   Phil.   91;    Jones    v.   Pugh,  Hare,  122,   125;  Hughes  v.   Biddulph,  4 

Id.  96;   Law   Mag.   (London)  vol.  xvii.  Russ.  190 ;  Vent  r.  Pacey,  Id.  193;  Clag- 

pp.  51-74,  and  vol.  xxx.  pp.   107-123;  ett  r.  Phillips,  2  Y.  &  C.  82  ;  Combe  v. 

Holmes   v.   Baddeley,   1   Phil.   Ch.   476.  Corp.  of  Lond.,  1  Y.  &  C.  631 ;  Holmes 

Lord  Langdale  has  held,  that  the  privi-  v.  Baddeley,  1  Phil.  Ch.  476. 
lege  of  a  client,  as  to  discovery,  was  not  '■^  Woods  v.  Woods,.  9  Jur.  615,  per  Sif 

coextensive  with  that   of  his   solicitor ;  J.  Wigram,  V.  C. 


284  LAVV^  OF  EVIDENCE.  [PAUT  H. 

a  bill  for  the  specific  performance  of  a  contract  for  the  sale  of  an 
estate  was  brought  by  the  assignees  of  a  bankrupt  who  has  sold 
it  under  their  commission,  and  a  cross-bill  was  filed  against  them 
for  discovery,  in  aid  of  the  defence,  it  was  held  that  the  privilege 
of  protection  did  not  extend  to  professional  and  confidential  com- 
munications between  the  defendants  and  their  counsel,  respecting 
the  property  and  before  the  sale,  but  only  to  such  as  had  passed 
after  the  sale  ;  and  that  it  did  not  extend  to  communications  be- 
tween them  in  the  relation  of  principal  and  agent ;  nor  to  those 
had  by  the  defendants  or  their  counsel  with  the  insolvent,  or  his 
creditors,  or  the  provisional  assignee,  or  on  behalf  of  the  wife  of 
the  insolvent.^ 

§  241.  Muniments  of  title  protected.  Upon  the  foregoing  prin- 
ciples it  has  been  held,  that  the  attorney  is  not  hound  to  2J'roduee 
title-deeds^  or  other  documents,  left  with  him  by  his  client  for 
professional  advice ;  though  he  may  be  examined  to  the  fact  of 
their  existence,  in  order  to  let  in  secondary  evidence  of  their 
contents,  which  must  be  from  some  other  source  than  himself.^ 
But  whether  the  object  of  leaving  the  documents  with  the  attor- 
ney was  for  professional  advice  or  for  another  purpose,  may  be 
determined  by  the  judge.^  If  he  was  consulted  merely  as  a  con- 
veyancer, to  draw  deeds  of  conveyance,  the  communications  made 
to  liim  in  that  capacity  are  within  the  rule  of  protection,*  even 
though  he  was  employed  as  the  mutual  adviser  and  counsel  of 
both  parties  ;  for  it  would  be  most  mischievous,  said  the  learned 
judges  in  the  Common  Pleas,  if  it  could  be  doubted,  whether  or 
not  an  attorney,  consulted  upon  a  man's  title  to  an  estate,  were 
at  liberty  to  divulge  a  flaw.^     Neither  does  the  rule  require  any 

1  Robinson  v.  Flight,  8  Jur.  888,  per  3  Reg.  v.  Jones,  1  Denis.  Cr.  Cas.  106. 
Ld.  Liingdiile.                                                          *  Cromack  v.  Heathcote,  2  B.  &  B.  4  ; 

2  Brand  y.  Ackerman,  5  Esp.  119;  Doe  Parker  v.  Carter,  4  Munf.  273;  see  also 
r.  Harris,  5  C.  &  P.  502 ;  Jackson  v.  Bur-  Wilson  v.  Troup,  7  Johns.  Ch.  25.  If  he 
tis,  14  Johns.  3!)1 ;  Dale  i".  Livingston,  4  was  employed  as  tlie  conve3-ancpr  and 
Wt'nd.  oo8 ;  Brandt  v.  Klein,  17  Johns,  mutual  counsel  of  l)oth  parties,  either  of 
y^-') ;  Jackson  v.  McVey,  18  Johns.  330;  th(;m  may  compel  the  production  of  the 
Bevan  v.  Waters,  1  M.  &  M.  235;  Eicke  deeds  and  papers,  in  a  subsequent  suit 
V.  Nokes,  Id.  303  ;  Mills  i'.  Oddy,  fl  C.  &  between  themselves.  So  it  was  held  in 
P.  728;  Marston  v.  Downes.Jd.  381 ;  8.  c.  chancery,  in  a  suit  by  the  wife  against 
1  Ad.  &  El.  31,  e.xplained  in  Ilibbert  v.  the  husband,  for  spec-ific  performance  of 
Knight,  12  Jur.  1(12;  Bate  v.  Kinsey,  1  an  agreement  to  charge  certain  estates 
C.  M.  &  11.  38;  Doe  v.  Gilbert,  7  M.  &  W.  with  her  jointure.  Warde  v.  Warde,  15 
102;  Nixon  v.  Mayoh,  1  M.  &  Hob.  76;  Jur.  750. 

Davies  v.  Waters.  9  M.  &  W.  (i()8  ;  Coates  *  Cromack  v.  Heathcote,  2  B.  &  B.  4; 

V.  Birch,  1  G.  &  D.  474;  1   Dowl.  P.  C.  Doe  v.  Scaton,  2  Ad.  &  Kl.  171  ;  Clay  v. 

640;  Do«  i;.  Langdon,  12  Ad.  &  El.  n.  s.  Williiims,  2  Munf.  105,  122;  Doe  i;.  Wat- 

711.  kins,  3  Bing.  N.  C.  421. 


CHAP.  XTTT.]      EVIDENCE  EXCLUDED  EKOM  PUBLIC  POLICY.        285 

regular  retainer,  as  counsel,  nor  any  particular  form  of  applica- 
tion or  engagement,  nor  the  payment  of  fees.  It  is  enough  that 
he  was  applied  to  for  advice  or  aid  in  his  professional  character.^ 
But  this  character  must  have  been  known  to  the  applicant ;  for 
if  a  person  should  be  consulted  confidentially,  on  the  supposition 
that  he  was  an  attorney,  when  in  fact  he  was  not  one,  he  will  be 
compelled  to  disclose  the  matters  communicated.^ 

§  2-12.  Except  -when  the  attorney  is  also  a  party.  Tllis  rule  is 
limited  to  cases  where  the  witness,  or  the  defendant  in  a  bill  in 
chancery  treated  as  such,  and  so  called  to  discover,  learned  the 
matter  in  question  only  as  counsel,  solicitor,  or  attorney,  and  in 
no  other  way.  If,  therefore,  he  were  a  party  to  the  transaction,  and 
especially  if  he  were  party  to  the  fraud  (as,  for  example,  if  he 
turned  informer,  after  being  engaged  in  a  conspiracy),  or,  in 
other  words,  if  he  were  acting  for  himself,  though  he  might  also 
be  employed  for  another,  he  would  not  be  protected  from  dis- 
closing ;  for  in  such  a  case  his  knowledge  would  not  be  acquired 
solely  by  his  being  employed  professionally.^ 

§  243.  Protection  perpetual.  The  protection  given  by  the  law 
to  such  communications  does  not  cease  with  the  termination  of 
the  suit,  or  other  litigation  or  business,  in  which  they  were  made  ; 
nor  is  it  affected  by  the  party's  ceasing  to  employ  the  attorney, 
and  retaining  another;  nor  by  any  other  change  of  relations 
between  them  ;  nor  by  the  death  of  the  client.  The  seal  of  the 
law,  once  fixed  upon  them,  remains  for  ever ;  unless  removed  hy 
the  party  himself,  in  whose  favor  it  was  there  placed.^     It  is  not 

1  Foster  v.  Hall,  12  Pick.  89.    See  also  5  Penn.  L.  J.  65.]     In  Duffin  v.  Smith, 

Bean  v.  Quimby,  5  N.  H.  M.     An  appli-  Peake's    Cas.   108,  Lord   Kenyon  recog- 

cation  to  an  attorney  or  solicitor,  to  ad-  nized  this  principle,  though  he  applied 

vanoe  money  on  a  mortgage  of  property  it  to  the  case  of  an  attorney  preparing 

described  in  a  forged  will,  sliown  to  him,  title-deeds,  treating  him  as  thereby  be- 

is  not  a  privileged  communication  as  to  coming  a  party  to  the  transaction  ;  but 

the  will.     Reg.  v.  Farley,  1  Denison,  197.  such   are  now  held   to   be    professional 

And  see  Keg.  ;».  Jones,  Id.   166.     [The  communications.     [A  communication  to 

mere  fact  of  having  retained  counsel  is  an  attorney  will  not  be  protected,  unless 

not  a   privileged   communication.     For-  it  appears  that,  at  the  time  it  was  made, 

shaw  V.  Lewis,  1  Jur.  n.  s.  263.]  he  was  acting  as  legal  adviser  upon  the 

'^  Fountain    v.    Young,    6    Esp.    113  very  matter  to  which  the  communication 

[Barnes  v.  Harris,  7  Gush.  576,  578].  referred.     Branden  v.  Gowing,  7    Kicli. 

■      8  Greenough  v.  Gaskell,  1  My.  &  K.  (S.   C.)  459.     Facts  stated  to  an  attor- 

103,  104 ;  Desborough  v.  Kawlins,  3  Myl.  ney,  as  reasons  to  show  that  the  cause  in 

&  Cr.  515,   521-523;    Story  on   Eq.  PI.  which  he  is  sought  to  be  retained  does 

§§    601,    602.      [Communications    of    a  not  conflict  with  the  interests  of  a  client 

client  to  his  attorney  are  not  privileged,  for  whom  he  is  already  employed,  are 

if  the  attorney  is  himself  a  party  to  the  not  confidential  communications.   Heaton 

transaction.     Nor  is  the  attorney  to  be  v.  Findlay,  12  Penn.  St.  304.] 
the   judge  whether  the  communications  *  Wilson  v.  Rastail,  4  T.   R.  759,  per 

are  privileged.    Jeaues  v.  Fridenburgh,  BuUer,  J. ;  Petrie's  case,  cited  arg.  4  T. 


286  LAW   OF  EVIDENCE.  [PAKT  U. 

removed  without  the  client's  consent,  even  tliough  the  interests 
of  criminal  justice  may  seem  to  require  the  production  of  the 
evidence.^ 

§  244.  When  the  attorney  must  disclose.  This  rule  is  further 
illustrated  by  reference  to  the  cases,  in  which  the  attorney  may 
be  examined,  and  wliich  are  therefore  sometimes  mentioned  as 
exceptions  to  the  rule.  These  apparent  exceptions  are,  where  the 
communication  was  made  before  the  attorney  ivas  employed  as 
such,  or  after  his  employment  had  ceased;  or  where,  though 
consulted  by  a  friend,  because  he  was  an  attorney,  yet  he  refused 
to  act  as  such,  and  was  therefore  only  applied  to  as  a  friend; 
or  where  there  could  not  be  said,  in  any  correctness  of  speech,  to 
be  a  communication  at  all,  as  where,  for  instance,  a  fact,  some- 
thing that  was  done,  became  known  to  him,  from  his  having  been 
brought  to  a  certain  place  by  the  circumstance  of  his  being  the 
attorney,  but  of  which  fact  any  other  man^  if  there,  would  have 
t)een  equally  conusant  (and  even  tliis  has  been  held  privileged  in 
some  of  the  cases) ;  or  where  the  matter  communicated  was 
7iot  in  its  nature  private,  and  could  in  no  sense  be  termed  the 
subject  of  a  confidential  disclosure ;  or  where  the  thing  had  no 
reference  to  the  professional  employment,  though  disclosed  while 
the  relation  of  attorney  and  client  subsisted;  or  where  the 
attorney,  having  made  himself  a  subscribing  witness,  and  thereby 
assumed  another  character  for  the  occasion,  adopted  the  duties 
which  it  imposes,  and  became  bound  to  give  evidence  of  all  that 
a  subscribing  witness  can  be  required  to  prove.     In  all  such 

R.  756;  Parker  v.  Yates,  12  Moore,  520;  8  Mass.  370;  Petrie's  case,  supra.  But 
Merle  v.  Moore,  R.  &  M.  390.  And  the  see  Reg.  v.  Avery,  8  C.  &  P.  596,  in 
client  does  not  waive  this  privilege  merely  which  it  was  held,  that,  where  the  same 
by  calling  the  attorney  as  a  witness,  un-  attorney  acted  for  the  mortgagee,  in  lend- 
less  he  also  himself  examines  him  in  chief  ing  the  money,  and  also  for  the  prisoner 
to  the  matter  privileged.  Vaillant  i*.  the  mortgagor,  in  i)reparing  the  mortgage 
Dodemead,  2  Atk.  524 ;  Waldron  v.  Ward,  deed,  and  received  from  the  prisoner,  as 
Sty.  449.  If  several  clients  consult  him  part  of  his  title-deeds,  a  forged  will,  it 
respecting  their  common  business,  the  was  held,  on  a  trial  for  forging  the  will, 
consent  of  them  all  is  necessary  to  ena-  that  it  was  not  a  privileged  communica- 
ble him  to  testify,  even  in  an  action  in  tion  ;  and  the  attorney  was  held  bound 
which  only  one  of  them  is  a  party.  Bank  to  produce  it.  See  also  Shore  r.  Bedford, 
of  Utica  V.  Mersereau,  3  Barb.  Ch.  528.  6  Man.  &  Grang.  271.  (And  if  the  attor- 
Where  the  party's  solicitor  became  trus-  ncy  cannot  say  wiiether  the  communica- 
tee under  a  deed  for  the  benefit  of  the  tion  came  to  him  while  acting  as  counsel, 
client's  creditors,  it  was  held  that  com-  or  was  made  by  the  client  while  under 
munications  subsequent  to  the  deed  were  examination  as  a  witness,  the  client,  be- 
still  privileged.  Pritchard  v.  Foulkes,  1  ing  on  trial  on  an  indictment,  is  entitled 
Coop.  14.  to  the  benefit  of  tiie  doubt.    People  v. 

1  Rex  V.  Smith,  Phil.  &  Am.  on  Evid.  Atkinson,  40  Cal.  284.] 
182  i  Rex  V.  Dixon,  3  Burr.  1(387;  Anon., 


CHAP.  Xm.]      EVIDENCE  EXCLUDED  FROM  PUBLIC  POLICY.        287 


cases,  it  is  plain  that  the  attorney  is  not  called  upon  to  disclose 
matters,  which  he  can  be  said  to  have  learned  by  communication 
with  his  client,  or  on  his  client's  behalf,  matters  which  were  so 
committed  to  him,  in  his  capacity  of  attorney,  and  matters  which 
in  that  capacity  alone,  he  had  come  to  know.^ 

§  245.  Same  subject.  Thus,  the  attorney  may  he  compelled  to 
disclose  the  name  of  the  person  by  whom  he  was  retained,  in 
order  to  let  in  the  confessions  of  the  real  party  in  interest ;  ^ 
the  character  in  which  his  client  employed  him,  whether  that  of 
executor  or  trustee,  or  on  his  private  account ;  ^  the  time  when 
an  instrument  was  put  into  his  hands,  but  not  its  condition  and 
appearance  at  that  time,  as,  whether  it  was  stamped  or  indorsed, 
or  not ;  *  the  fact  of  his  paying  over  to  his  client  moneys  collected 
for  him  ;  the  execution  of  a  deed  by  his  client,  which  he  attested ;  ^ 
a  statement  made  by  him  to  the  adverse  party .^  He  may  also  be 
called  to  prove  the  identity  of  his  client ;  "^  the  fact  of  his  having 
sworn  to  his  answer  in  chancery,  if  he  were  then  present ;  ^  usury 
in  a  loan  made  by  him  as  broker^  as  well  as  attorney  to  the 
lender ;  ^  the  fact  that  he  or  his  client  is  in  possession  of  a 
certain  document  of  his  client's,  for  the  purpose  of  letting  in 
secondary  evidence  of  its  contents ;  '^^  and  his  client's  handwrit- 


1  Per  Ld.  Brougham,  in  Greenough 
V.  Gaskell,  1  My.  &  K.  104.  See  also 
Desborough  v.  Rawlins,  3  Myl.  &  Cr. 
521,  522 ;  Lord  Walsingham  v.  Goodricke, 
3  Hare,  122;  Story's  Eq.  PI.  §§  601, 
602 ;  Bolton  v.  Corporation  of  Liverpool, 
1  My.  &  K.  88 ;  Annesley  v.  E.  of  Angle- 
sea,  17  Howell's  St.  Tr.  1239-1244  ;  Gil- 
lard  V.  Bates,  6  M.  &  W.  547  ;  Rex  v. 
Brewer,  6  C.  &  P.  363  ;  Levers  v.  Van 
Buskirk,  4  Barr,  309.  Communications 
between  the  solicitor  and  one  of  his 
clients'  witnesses,  as  to  the  evidence  to 
be  given  by  the  witness,  are  not  privi- 
leged. Mackenzie  v.  Yeo,  2  Curt.  866. 
It  has  also  been  held,  that  communica- 
tion between  a  testator  and  the  solicitor 
who  prepared  his  will,  respecting  the 
will  an  1  tlie  trusts  thereof,  are  not  privi- 
leged     Russell  V.  Jackson,  15  Jur.  1117. 

■^  Levy  V.  Pope,  1  M.  &  M.  410  ;  Brown 
V.  Payson,  6  N.  H.  443 ;  Chirac  v.  Rein- 
icker,  1 1  Wheat.  280 ;  Gower  v.  Emery, 
6  Shepl.  79. 

8  Beckwith  v.  Benner,  6  C.  &  P.  681. 
But  see  Chirac  v.  Reinicker,  11  Wheat. 
iiSO,  295,  where  it  was  held,  that  counsel 
could  not  disclose  whether  they  were 
employed  to  conduct  an  ejectment  for 
their  client  as  landlord  of  the  premises. 


*  Wheatley  r.  Williams,  1  Mees.  &  W. 
533  ;  Brown  v.  Payson,  6  N.  H.  443.  But 
if  the  question  were  about  a  rasure  in  a 
deed  or  will,  he  might  be  examined  to 
the  question,  whether  he  had  ever  seen 
it  in  any  other  plight.  Bull.  N.  P.  284. 
So,  as  to  a  confession  of  the  rasure 
by  his  client,  if  it  were  confessed  be- 
fore his  retainer.  Cutts  v.  Pickering,  1 
Ventr.  197.  See  also  Baker  v.  Arnold, 
1  Cai.  258,  per  Thompson  and  Living- 
ston, JJ. 

°  Doe  V.  Andrews,  Cowp.  845 ;  Robson 
V.  Kemp,  4  Esp.  235;  s.  c.  5  Esp.  53; 
Sanford  v.  Remington,  2  Ves.  189. 

«  Ripon  V.  Davies,  2  Nev.  &  M.  210 ; 
Shore  v.  Bedford,  5  M.  &  Gr.  271 ;  Griffith 
V.  Davies,  5  B.  &  Ad.  502,  overruling 
Gainsford  v.  Grammar,  2  Campb.  9,  con- 
tra. 

''  Cowp.  840 ;  Beckwith  v.  Benner,  6 
C.  &  P.  681 ;  Hurd  v.  Moring,  1  C.  &  P. 
372  ;  Rex  v.  Watkinson,  2  Stra.  1122,  and 
note  [or  his  place  of  residence.  Rams- 
bottom  V.  Senior,  8  L.  R.  Eq.  5751. 

8  Bull.  N.  P.  284;  Cowp.  846. 

9  Duffln  V.  Smith,  Peake's  Cas.  108. 
10  Bevan  v.  Waters,  1   M.  &  M.  235; 

Eicke  V.  Nokes,  Id.  303;  Jackson  v.  Mc- 
Vey,  18  Johns.  330 ;  Brandt  v.  Klein,  17 


288 


LAAV   OF   EVIDENCE. 


[pAKT  n. 


ing.i  But  in  all  cases  of  this  sort,  the  privilege  of  secrecy  is 
carefully  extended  to  all  the  matters  professionally  disclosed,  and 
which  he  would  not  have  known  but  from  his  being  consulted 
professionally  by  his  client. 

§  246.  Papers  of  strangers  to  suit.  Where  an  attorney  is  called 
iipon,  whether  by  suhpoena  duces  tecum,  or  otherwise,  to  produce 
deeds  or  papers  belonging  to  his  client,  who  is  not  a  party  to  the 
suit,  the  court  will  inspect  the  documents,  and  pronounce  upon 
their  admissibility,  according  as  their  production  may  appear  to 
be  prejudicial  or  not  to  the  client ;  in  like  manner,  as  where  a 
witness  objects  to  the  production  of  his  own  title-deeds.^  And 
the  same  discretion  will  be  exercised  by  the  courts,  where  the 
documents  called  for  are  in  the  hands  of  solicitors  for  the  assignees 
of  bankrupts  ;  ^  though  it  was  at  one  time  thought  that  their  pro- 
duction was  a  matter  of  public  duty.^  So,  if  the  documents 
called  for  are  in  the  hands  of  the  agent  or  stetvard  of  a  third  per- 
son, or  even  in  the  hands  of  the  owner  himself,  their  production 
will  not  be  required  where,  in  the  judgment  of  the  court,  it  may 
injuriously  affect  his  title.^     This  extension  of  the  rule,  which 


Johns.  335;  Doe  v.  Eoss,  7  M.  &  W. 
102 ;  Kobson  v.  Kemp,  5  Esp.  53  ;  Coates 
V.  Bircli,  2  Ad.  &  El.  n.  s.  25*2 ;  Coveney 
V.  Tiinnahill,  1  Hill,  33  ;  Dwyer  v.  Collins, 
16  Jur.  5ti9;  7  Excli.  G39. 

1  Hurd  V.  Moring,  1  C.  &  P.  372  ;  Jolm- 
8on  V.  Daverne,  19  Johns.  134;  4  Hawk. 
P.  C.  b.  2,  ch.  46,  §  8!). 

'■'  Copeland  v.  Watts,  1  Stark.  95; 
Amev  v.  Long,  9  East,  473 ;  s.  c.  1  Canipb. 
14;  Phil.  &  Am.  on  Evid.  186;  1  Phil. 
Evid.  175;  Reynolds  «.  Kowley,  3  Rob. 
(La.)  201;  Travis  v.  January.  Id.  227. 
[In  Volant  v.  Soyer,  13  C.  B.  231,  it  was 
lield  tliat  an  attorney  had  no  right 
to  produce  or  to  answer  any  questions 
concerning  the  nature  or  contents  of  a 
deed  or  other  document  intrusted  to 
liini  professionally  by  his  client ;  nor 
can  tlie  judge  look  at  the  instrument, 
with  a  view  to  determine  whether  the 
objection  to  giving  testimony  in  regard 
to  it  be  well  i'ounded.] 

^  Haleson  v.  Hartsink.  4  Esp.  43; 
Cohen  V.  Templar,  2  Stark.  260 ;  Laing 
V.  Barclay,  3  Stark.  38;  Hawkins  v. 
Howard,  Hy.  &  M.  64  ;  Corsen  c.  Dubois, 
Hoh's  Cas.  239;  Bull  v.  Loveland,  10 
Pick.  9,  14 ;  Volant  v.  Soyer,  22  Law  J. 
C.  P.  83  ;  16  Eng.  Law  &  Eq.  426. 

*  I'earson  v.  Fletcher,  5  Esp.  90,  per 
Ld.  Ellenborongti. 

5  Ilex  V.  Hunter,  3  C.  &  P.  591 ;  Pick- 


ering V.  Noyes,  1  B.  &  C.  262;  Roberts  v. 
Simpson,  2  Stark.  203;  Doe  v.  Thomas, 
9  B.  &  C.  288 ;  Bull  v.  Loveland,  10  Pick. 
9,  14.  And  see  Doe  v.  Langdon,  12  Ad. 
&  El.  N.  s.  711  ;  13  Jur.  96;  Doe  v.  Hert- 
ford, 13  Jur.  632.  H.  brought  an  action 
upon  bonds  against  E.,  in  wliich  the  opin- 
ion of  eminent  counsel  had  been  taken  by 
the  plaintiff,  upon  a  case  stated.  After- 
wards an  action  was  brought  by  C.  against 
E.  upon  other  similar  bonds,  and  the  so- 
licitor of  H.  lent  to  the  solicitor  of  C.  the 
case  and  opinion  of  counsel  taken  in  the 
former  suit,  to  aid  him  in  the  conduct  of 
the  latter.  And  upon  a  bill  filed  by  E. 
against  C,  for  the  discovery  and  produc- 
tion of  this  document,  it  was  held  to  he  a 
privileged  communication.  Enthoven  v. 
Cobb,  16  Jur.  1152;  17  Jur.  81 ;  15  Eng. 
Law  &  Eq.  277,  295. 

[Where  a  witness  declined  answering, 
on  the  ground  that  "  his  knowledge  in- 
quired after  had  been  acquired  by  virtue 
of  his  employment  as  the  solicitor  of  tiie 
defendant  in  relation  to  such  matters, 
and  from  no  other  source,"  the  coin-t  held, 
Kindersley,  V.  C,  that,  to  be  i)rivik'ged, 
it  must  be  "  a  confidential  connnunica- 
tion  V)ctween  him  and  his  client  in  the 
character  of  his  professional  relation  of 
solicitor  and  client.  It  is  not  necessary 
to  show  that  it  was  secret,  but  it  must 
pass  in  that  relation;  and  it  must  arise 


CHAP.  XIII.]      EVIDENCE  EXCLUDED  FROM  PUBLIC  POLICY.         289 

will  be  more  fully  treated  hereafter,  is  founded  on  a  consideration 
of  the  great  inconvenience  and  mischief  which  may  result  to  in- 
dividuals from  a  compulsory  disclosure  and  collateral  discussion 
of  their  titles,  in  cases  where,  not  being  themselves  parties,  the 
whole  merits  cannot  be  tried. 

§  247.  Communications  to  clergymen.  There  is  one  Other  situa- 
tion, in  which  the  exclusion  of  evidence  has  been  strongly  con- 
tended for,  on  the  ground  of  confidence  and  the  general  good, 
namely,  that  of  a  clergyman  ;  and  this  chiefly,  if  not  wholly,  in 
reference  to  criminal  conduct  and  proceedings ;  that  the  guilty 
conscience  may  with  safety  disburden  itself  by  penitential  con- 
fessions, and  by  spiritual  advice,  instruction,  and  discipline,  seek 
pardon  and  relief.  The  law  of  Papal  Rome  has  adopted  this 
principle  in  its  fullest  extent;  not  only  excepting  such  confes- 
sions from  the  general  rules  of  evidence,  as  we  have  already  inti- 
mated,!  but  punishing  the  priest  who  reveals  them.  It  even  has 
gone  farther ;  for  Mascardus,  after  observing  that,  in  general,  per- 
sons coming  to  the  knowledge  of  facts,  under  an  oath  of  secrecy, 
are  compellable  to  disclose  them  as  witnesses,  proceeds  to  state 
the  case  of  confessions  to  a  priest  as  not  within  the  operation  of - 
the  rule,  on  the  ground  that  the  confession  is  made  not  so  much 
to  the  priest  as  to  the  Deity,  whom  he  represents ;  and  that  there- 
fore the  priest,  when  appearing  as  a  witness  in  his  private  char- 
acter, may  lawfully  swear  that  he  knows  nothing  of  the  subject. 
"  Hoc  tamen  restringe,  non  posse  procedere  in  sacerdote  pro- 
ducto  in  testem  contra  reum  criminis,  quando  in  confessione  sac- 
ramentali  fuit  aliquid  sibi  dictum,  quia  potest  dicere,  se  nihil  scire 
ex  eo  ;  quod  illud,  quod  scit,  scit  ut  Deus,  et  ut  Deus  non  pro- 
ducitur  in  testem,  sed  ut  homo,  et  tanquam  homo  ignorat  illud 
super  quo  j  roducitur."  2    In  Scotland,  where  a  prisoner  in  custody 

from  communications  by  the  client  to  the  Antiq.  vol.  iii.  pp.  313,  316.    Leges  Lan- 

solicitor,  or  solicitor  to  the  client."  Marsh  gobardicse,  in  the  same  collection,  vol.  i. 

V.  Keith,  6  Jur.  n.  s.  IIS'^].  pp.  18-4,  200,  237.     But  from  the  consti- 

1  Supra,   §   229,   n.     By   the   Capitu-  tiitions  of  King  Etlielred,  which  provide 

laries   of   the   French   kings,  and'  some  for  the  punishment  of  priests  guilty  of 

other  continental  codes   of   the    Middle  perjury,  — "  Si  presbyter,  n//c)(?u"  iiiveni- 

Agcs,  the  clergy  were  not  only  excused,  atur  in  falso  testimonio,  vol  in  perjui-io," 

but  in  some  cases  were  utterly  prohibited  — it  would  seem  that  the  English  law  of 

from  attending  as  witnesses  in  any  cause,  that  day  did  not  recognize  any  distinc- 

Clerici   de    judicii    sui    cognitione    non  tion  between  them  and  the  laity,  in  re- 

cogantur  in  publicum  dicere  testimonium,  gard  to  the  obligation   to  testify  as  wit- 

Capit.   Keg.    Francorum,   lib.    7,   §    118  ncsses.  See  Leges  Harbaror.  Antiq.  vol.  iv. 

(A,  D.  827).     Ut  nulla  ad  testimonia  di-  p.  294;  Ancient  Laws  and  Inst,  of  Eng- 

cendum,  ecclesiastici  cujuslibet  pulsetur  land,  vol.  i.  p.  317,  §  27. 
persona.     Id.  §  91.     See  Leges  Barbar.  2  Mascard.  De  Probat.  vol.  i.  Quaest 

VOL.   I.  19 


290 


LAW   OF  EVIDENCE. 


[part  n. 


and  preparing  for  liis  trial  has  confessed  his  crimes  to  a  clergyman, 
in  order  to  obtain  spiritual  advice  and  comfort,  the  clergyman  is 
not  required  to  give  evidence  of  such  confession.  But  even  in 
criminal  cases  this  exception  is  not  carried  so  far  as  to  include 
communications  made  confidentially  to  clergymen  in  the  ordinary- 
course  of  tlieir  duty.i  Though  the  law  of  England  encourages 
the  penitent  to  confess  his  sins,  "for  the  unburtheniDg  of  his 
conscience,  and  to  receive  spiritual  consolation  and  ease  of  mind," 
yet  the  minister  to  whom  the  confession  is  made  is  merely  excused 
from  presenting  the  offender  to  the  civil  magistracy,  and  enjoined 
not  to  reveal  the  matter  confessed,  "under  pain  of  irregularity."  ^ 
In  all  other  respects,  he  is  left  to  the  full  operation  of  the  rules  of 
the  common  law,  by  which  he  is  bound  to  testify  in  such  cases  as 
any  other  person  when  duly  summoned.  In  the  common  law  of 
evidence  there  is  no  distinction  between  clergymen  and  lapnen ; 
but  all  confessions,  and  other  matters  not  confided  to  legal  coun- 
sel, must  be  disclosed  when  required  for  the  purposes  of  justice. 
Neither  penitential  confessions,  made  to  the  minister  or  to  mem- 
bers of  the  party's  own  church,  nor  secrets  confided  to  a  Roman 
Catholic  priest  in  the  course  of  confession,  are  regarded  as  privi 
leged  communications.^ 

§  248.  Physicians,  confidential  clerks,  &c.      Neither  is  this  pro- 
tection extended  to  medical  loersons^'^  in  regard  to  information 


6,  n.  61 ;  Id  Concl.  377.  Vid.  et_P.  Fari- 
nac.  Opera,  tit.  8,  Qiiajst.  78,  n.  73. 

1  Tait  on  Evidence,  pp.  380,  387 ;  Ali- 
son's Practice,  p.  586. 

■■^  Const.  &  Canon,  1  Jac.  1,  Can.  cxiii. ; 
Gibson's  Codex,  p.  063. 

3  Wilson  V.  Kastan,4  T.  R.  753;  But- 
ler V.  Moore,  McNaily's  Evid.  253-255 ; 
Anon.,  2  Skin.  404,  per  Holt,  C.  J.  ;  Du 
Barre  v.  Livette,  Peake's  Cas.  77  ;  Com- 
monwealth V.  Drake,  15  Mass.  161.  The 
contrary  was  lield  by  l)e  Witt  Clinton, 
Mayor,  in  tlie  Court  of  (ieneral  Sessions 
in  New  York,  .June,  1813,  in  The  Pt'oi)le 
V.  Phillips,  1  Southwest.  Law  Journ.  p. 
90.  By  a  subsequent  statute  of  New  York 
(2  Rev.  St.  4()(i,  §  72),  "No  minister  of 
the  gospel,  or  priest  of  any  denomination 
whatsoever,  shall  be  aUowed  to  disclose 
any  confessions  made  to  him  in  liis  pro- 
fessional character,  in  tiie  course  of  ilisci- 
pline  enjoined  by  the  rules  or  practice  of 
8uch  denomination."  Tiiis  is  held  to  ap- 
ply to  those  confessions  only  which  are 
made  to  the  minister  or  priest  profession- 
ally, and  in  the  course  of  discipline  enjoined 


by  the  Church.  The  People  v.  Gates,  13 
Wend.  311.  A  similar  statute  exists  in 
Missouri  (Rev.  Stat.  1845,  c.  180,  §  19) ; 
and  in  Wisconsin  (Kev.  Stat.  1849,  c.  98, 
§  75)  ;  and  in  Michigan  (Rev.  Stat.  1846, 
c.  102,  §  85)  ;  and  in  lova  (Code  of  1851, 
art.  2303).  See  also  Broad  v.  Pitt,  3  C. 
&  P.  518,  in  which  case  Best,  C.  J., 
said,  that  he  for  one  would  never  compel 
a  clergyman  to  disclose  communications 
made  to  him  by  a  prisoner;  but  that,  if 
lie  chose  to  disclose  them,  he  would  re 
ceive  them  in  evidence.  Joy  on  Confes- 
sions, &c.,  pp.  49-58  ;  Best's  Principles  of 
Evidence,  §  417-419. 

*  Duchess  of  Kingston's  case,  11  Hargr. 
St.  Tr.  243;  20  Howell's  St.  Tr.  043; 
Rex  V.  Gibbons,  1  C.  &  P.  97  ;  Broad  v. 
Pitt,  3  C.  &  P.  518,  per  Best,  C.  J.  By 
the  Revised  Statutes  of  New  York  (vol. 
ii.  p.  406,  §  73),  "  No  person,  duly  author- 
ized to  practise  i)hysic  or  surgery,  shall 
be  allowed  to  disclose  any  information 
which  he  may  have  acquired  in  attending 
any  patient  in  a  professional  character, 
and  which  information  was  necessary  to 


CHAP.  XIIT.]      EVIDENCE  EXCLUDED  FEOM  PUBLIC  POLICY.         291 

which  they  have  acquired  confidentially,  by  attending  in  their 
professional  characters ;  nor  to  confidential  friends,^  clerks,^ 
hankers,^  or  steivards,^  except  as  to  matters  which  the  employer 
himself  would  not  be  obliged  to  disclose,  such  as  his  title-deeds 
and  private  papers,  in  a  case  in  which  he  is  not  a  party. 

§  249.  Judges  and  arbitrators.  The  case  of  judges  and  arbi- 
trators may  be  mentioned,  as  the  second  class  of  privileged 
communications.  In  regard  to  judges  of  courts  of  record,  it  is 
considered  dangerous  to  allow  them  to  be  called  upon  to  state 
what  occurred  before  them  in  court ;  and  on  this  ground,  the 
grand  jury  were  ad%dsed  not  to  examine  the  chairman  of  the 
Quarter  Sessions,  as  to  what  a  person  testified  in  a  trial  in  that 
court.^  The  case  of  arbitrators  is  governed  by  the  same  general 
policy  ;  and  neither  the  courts  of  law  nor  of  equity  w-ill  disturb 
decisions  deliberately  made  by  arbitrators,  by  requiring  them  to 
disclose  the  grounds  of  their  award,  unless  under  very  cogent  cir- 
cumstances, such  as  upon  an  allegation  of  fraud ;  for,  "  Interest 
reipublicse  ut  sit  finis  litium."  ^ 

§  250.  state  secrets.  We  now  proceed  to  the  third  class  of 
cases,  in  which  evidence  is  excluded  from  motives  of  public  policy, 
namely,  secrets  of  state,  or  things,  the  disclosure  of  which  would 
be  prejudicial  to  the  public  interest.  These  matters  are  either 
those  which  concern  the  administration  of  penal  justice,  or  those 
which  concern  the  administration  of  government ;  but  the  prin- 
ciple of  public  safety  is  in  both  cases  the  same,  and  the  rule  of 

enable  him  to  prescribe  for  such  patient  *  Vaillant  i'.  Dodemead,  2  Atk.  524; 

as  a  physician,  or  to  do  any  act  for  him  as  4  T.  E.  756,  per  BuUer.  J. ;  E.  of  Falmouth 

a  surgeon."     But   though  the  statute  is  v.   Moss,    11   Price,   455.      [In    State    v. 

thus  express,  yet  it  seems  the  party  him-  Litchfield,  58  Maine,  267,  it  was  claimed 

self  may  waive  the  privilege  ;  in  which  that  communications  by  telegraph  should 

case  the  fiicts  may  be  disclosed.     Johnson  be  protected  as  confidential,  and  that  the 

V.  Johnson,  14  Wend.  637.     A  consulta-  operator   was    not    obliged   to   disclose, 

tion,  as  to  the  means  of  procuring  abortion  But   the   court  held   that   the    mode  of 

in  another,  is  not  privileged  by  this  stat-  communication  was  immaterial.     And  a 

•ute.      Hewett   v.   Prime,    21  "Wend.  79.  statute  prohibiting  disclosures  under  a 

Statutes  to  the  same  etTect  have  been  en-  penalty  has  no  application  to  disclosures 

acted   in   Missouri   (Rev.    Stat.    1845,   c.  required  in  the  course  of  a  trial  in  a  court 

186,  §  20)  ;  and  in  Wisconsin  (Rev.  Stat,  of    justice.      Henisler    v.    Freedman,   2 

1849,  c.  98,  §  75)  ;  and  in  Michigan  (Eev.  Parsons  (Penn.),  Eq.  Gas.  274.] 
Stat.  1846,  c.  102,  §  86).     So  in  Lma;  in  5  Reg.  v.  Gazard,  8  G.  &  P.  505,  per 

which  State  the  privilege  extends  to  pub-  Patteson,  J.  [People  v.  Miller,  2  Parker, 

lie  ofliccrs,  in  cases  where  the  public  in-  C.  R.  197]. 

terest   would   suffer  by   the  disclosure.  *>  Storv,  Eq.  PI.  458,  n.  (1);   Anon., 

Code  of  1851,  arts.  2393,  2395.  3  Atk.  644  ;  2  Story,  Eq.  Jurisp.  CBO ; 

1  4  T.  R.  758,  per  Ld.  Kenyon ;  Hoff-  Johnson  v.  Durant,  4  C.  &  P.  327  ;  Ellis 
man  v.  Smith,  1  Gaines,  157,  159.  v.  Saltan,  Id.n.  (a)  ;  Habershon  v.  Troby, 

2  Lee  V.  Birrell,  3  Gampb.  837  ;  Webb  3  Esp.  38.  [See  post,  vol.  ii.  §  78,  and 
V.  Smith,  1  G.  &  P.  337.  notes.] 

3  Loyd  V.  Freshfield,  2  C.  &  P.  325. 


292  LAW   OF  EVIDENCE.  [PABT  H. 

exclusion  is  applied  no  further  than  the  attainment  of  that  object 
requires.  Thus,  in  criminal  trials,  the  names  of  persons  employed 
in  the  discovery  of  the  crime  are  not  permitted  to  be  disclosed, 
any  farther  than  is  essential  to  a  fair  trial  of  the  question  of  the 
prisoner's  innocence  or  guilt.^  "  It  is  perfectly  right,"  said  Lord 
Chief  Justice  Eyre,^  "that  all  opportunities  should  be  given  to 
discuss  the  truth  of  the  evidence  given  against  a  prisoner;  but 
there  is  a  rule  which  has  universally  obtained,  on  account  of  its 
importance  to  the  public  for  the  detection  of  crimes,  that  those 
persons  who  are  the  channel  by  means  of  which  that  detection 
is  made  should  not  be  unnecessarily  disclosed."  Accordingly, 
where  a  witness,  possessed  of  such  knowledge,  testified  that  he 
related  it  to  a  friend,  not  in  office,  who  advised  him  to  communi- 
cate it  to  another  quarter,  a. majority  of  the  learned  judges  held 
that  the  witness  was  not  to  be  asked  the  name  of  that  friend ; 
and  they  all  were  of  opinion  that  all  those  questions  which  tend 
to  the  discovery  of  the  channels  by  wliich  the  disclosure  was 
made  to  the  officers  of  justice,  were,  upon  the  general  principle 
of  the  convenience  of  public  justice,  to  be  suppressed ;  that  all 
persons  in  that  situation  were  protected  from  the  discovery ;  and 
that,  if  it  was  objected  to,  it  was  no  more  competent  for  the  de- 
fendant to  ask  the  witness  who  the  person  was  that  advised  him 
to  make  a  disclosure,  than  to  ask  who  the  person  was  to  whom 
he  made  the  disclosure  in  consequence  of  that  advice,  or  to  ask 
any  other  question  respecting  the  channel  of  communication,  or 
all  that  was  done  under  it.^  Hence  it  appears  that  a  witness,  who 
has  been  employed  to  collect  information  for  the  use  of  govern- 
ment, or  for  the  purposes  of  the  police,  will  not  be  permitted  to 
disclose  the  name  of  his  employer,  or  the  nature  of  the  connection 
between  them,  or  the  name  of  any  person  who  was  the  channel 
of  communication  with  the  government  or  its  officers,  nor  whetlier 
the  information  has  actually  reached  the  government.  But  he 
may  be  asked  whether  the  person  to  whom  the  information  was 
communicated  was  a  magistrate  or  not.'* 


1  Rex  V.  Ilanly,  21  IIowoll's  St.  Tr.  v.  Briant,  15  Law  .Tourn.  n.  s.  Exch.  265; 

753.     Tlie  rule  lias  been  recently  settled,  5  Law  Mag.  n.  s.  8.".3. 

that,  ill  a  public  jirosccution,  no  question  '^  In  Ilex   v.  Hardy,  24   Howell's  St. 

can  be  put  wliich  tends  to  reveal  who  was  Tr.  808. 

the  secret  informer  of  the  {government;  ^  Kex  v.  Hardy,  24  IloweH's  St.  Tr. 
even  thou{;li  the  question  be  addressed  to  808-815,  per  Ld.  C.  J.  Eyre;  M.  815-820. 
a  witness  in  order  to  ascertain  whether  lie  *  1  Phil.  Evid.  180.  181;  Hex  v.  Wat- 
was  not  himself  the  informer.     Att.-Gen.  son,  2  Stark.  13G;   32  HowcU's  St.  Tr. 


CHAP.  Xin.]      EVIDENCE  EXCLTJDED  FROM  PUBLIC  POLICY.        293 

§  251.  Communications  bet'ween  state  officials.  On  a  like  princi- 
ple of  public  policy,  the  official  transactions  between  the  heads 
of  the  dejHirtments  of  state  and  their  subordinate  officers  are  in 
general  treated  as  privileged  communications.  Thus,  communi- 
cations between  a  provincial  governor  and  his  attorney-general, 
on  the  state  of  the  colony,  or  the  conduct  of  its  officers ;  ^  or 
between  such  governor  and  a  military  officer  under  liis  authority  ;  ^ 
the  report  of  a  military  commission  of  inquiry,  made  to  the  com- 
mander-in-chief;  ^  and  the  correspondence  between  an  agent  of 
the  government  and  a  Secretary  of  State,^ —  are  confidential  and 
privileged  matters,  which  the  interests  of  the  state  will  not  per- 
mit to  be  disclosed.  The  President  of  the  United  States,  and  the 
governors  of  the  several  States,  are  not  bound  to  produce  papers 
or  disclose  information  communicated  to  them,  when,  in  their 
own  judgment,  the  disclosure  would,  on  public  considerations,  be 
inexpedient.^  And  where  the  law  is  restrained  by  public  policy 
from  enforcing  the  production  of  papers,  the  like  necessity  re- 
strains it  from  doing  what  would  be  the  same  thing  in  effect ; 
namely,  receiving  secondary  evidence  of  their  contents.^  But 
communications,  though  made  to  official  persons,  are  not  privi- 
leged where  they  are  not  made  in  the  discharge  of  any  public 
duty ;  such,  for  example,  as  a  letter  by  a  private  individual  to 


101 ;  United  States  v.  Moses,  4  Wash. 
7-20 ;  Home  v.  Lord  F.  C.  Bentinck,  2  B. 
&  B.  130,  162,  per  Dallas,  C.  J. 

1  Wyatt  V.  Gore,  Holt's  N.  P.  Cas. 
299. 

2  Cooke  V.  Maxwell.  2  Stark.  183. 

3  Home  V.  Lord  F.  C.  Bentinck,  2  B. 
&  B.  130. 

*  Anderson  v.  Hamilton,  2  B.  &  B. 
156,  n. ;  2  Stark.  185,  per  Lord  El- 
lenborough,  cited  by  the  Attorney-Gen- 
eral ;  Marbury  v.  Madison,  1  Cranch, 
144. 

5  1  Burr's  Trial,  pp.  186,  187,  per 
Marshall,  C.  J.;  Gray  v.  Pentland,  2  S. 
&  R.  23. 

6  Gray  r.  Pentland,  2  S.  &  R.  23, 
31,  32,  per  Tilgliraan,  C.  J.,  cited  and  ap- 
proved in  Yoter  v.  Sanno,  6  Watts,  156, 
per  Gibson,  C.  J.  In  Law  v.  Scott,  5 
Har.  &  J.  4.38,  it  seems  to  have  been  lield, 
that  a  senator  of  the  United  States  may 
be  examined,  as  to  what  transpired  in  a 
secret  executive  session,  if  the  Senate  has 
refused,  on  the  party's  application,  to  re- 
move the  injunction  of  secrecy.  Sed 
qucere,  for  if  so,  the  object  of  the  rule,  in 


the  preservation  of  state  secrets,  may 
generally  be  defeated.  And  see  Plunkett 
V.  Cobbett.  29  Howell's  St.  Tr.  71,  72;  5 
Esp.  s.  c.  136,  where  Lord  EUenborough 
held,  tliat  though  one  member  of  Parlia- 
ment may  be  asked  as  to  the  fact  that 
another  member  took  part  in  a  debate,  j-et 
he  was  not  bound  to  relate  any  thing  which 
had  been  delivered  by  such  a  speaker  as  a 
member  of  Parliament.  But  it  is  to  lie 
observed,  that  this  was  placed  by  Lord 
Ellenborough  on  the  ground  of  personal 
privilege  in  the  member ;  whereas  the 
transactions  of  a  session,  after  strangers 
are  excluded,  are  placed  under  an  injunc- 
tion of  secrecy,  for  reasons  of  state. 
[In  a  somewliat  recent  case,  Beatson  r. 
Skene,  5  H.  &  N.  838,  it  is  said  the  head 
of  the  department  will  judge  of  the  pro- 
priety of  withholding  state  secrets  in  the 
first  instance ;  and  unless  such  ofRcer  refers 
the  question  to  tlie  court,  it  will  not  en- 
force the  disclosure  of  such  secrets  with- 
out very  conclusive  evidence  that  it  may 
be  done  without  prejudice  to  the  public 
service.] 


294  LAW   OF   EVIDENCE.  [PAUT  H. 

the  chief  secretary  of  the  postmaster-general,  complaining  of  the 
conduct  of  the  guard  of  the  mail  towards  a  passenger.^ 

§  252.  Proceedings  of  grand  jurors.  For  the  same  reason  of 
public  policy,  in  the  furtherance  of  justice,  the  proceedings  of 
grand  jurors  are  regarded  as  privileged  communications.  It  is 
the  policy  of  the  law,  that  the  preliminary  mquiry,  as  to  the 
guilt  or  innocence  of  a  party  accused,  should  be  secretly  con- 
ducted ;  and  in  furtherance  of  tliis  object  every  grand  juror  is 
sworn  to  secrecy .^  One  reason  may  be,  to  j)revent  the  escape  of 
the  party  should  he  knoAv  that  proceedings  were  in  train  against 
him ;  another  may  be,  to  secure  freedom  of  deliberation  and  opin- 
ion among  the  grand  jurors,  which  would  be  impaired  if  the  part 
taken  by  each  might  be  made  known  to  the  accused.  A  tliii'd 
reason  may  be,  to  prevent  the  testimony  produced  before  them 
from  being  contradicted  at  the  trial  of  the  indictment,  by  suborna- 
tion of  perjury  on  the  part  of  the  accused.  The  rule  includes  not 
only  the  grand  jurors  themselves,  but  their  clerk,-^  if  they  have  one, 
and  the  prosecuting  officer,  if  he  is  present  at  their  deliberations ;  * 
all  these  being  equally  concerned  in  the  administration  of  the 
same  portion  of  penal  law.  They  are  not  permitted  to  disclose 
who  agreed  to  find  the  bill  of  indictment,  or  who  did  not  agree  ; 
nor  to  detail  the  evidence  on  wliich  the  accusation  was  founded.® 
But  they  may  be  compelled  to  state  whether  a  particular  person 
testified  as  a  witness  before  the  grand  jury ;  ^  though  it  seems 
they  cannot  be  asked  if  liis  testimony  there  agreed  with  what  he 
testified  upon  the  trial  of  the  indictment.''    Grand  jurors  may  also 

1  Blake  v.  Pilford,  1  M.  &  Rob.  198.  same  purpose  ;   neither  of  these  being 

2  ["  The  extent  of  tlie  limitation  upon  sworn  to  secrecy.  Keg.  v.  Hughes,  1 
the  testimony  of  grand  jurors  is  best  de-  Car.  &  Kir.  519.  [It  may  be  doubtful  if 
fined  by  the  terms  of  their  oath  of  office,  one  witness  has  a  riglit  to  be  present 
by  which  'the  Coiiimonwealth's  counsel,  before  the  grand  jury  while  anotlier  is 
their  _/e//ows' and  thdr  own,  tiiey  are  to  testifying.] 

keep  secret.'"    By  Bigelow,  J.,  Common-  ^  Sykes  v.  Dunbar,  2  Selw.  N.  P.  815, 

wealth  V.  Hill,  11  Cush.  187,  140.]  [1059]  ;  Huidekoper  i;.  Cotton,  3  Watts, 

3  12  Vin.  Abr.  38,  tit.  Evid.  B,  a,  pi.  5 ;  66  ;  McLellan  v.  Richardson,  1  Shepl.  82 ; 
Trials  per  Pais,  315.  Low's    case,   4    Greenl.   439,   446,   453 ; 

*  Commonwealth   v.  Tilden,  cited  in  Burr's  Trial  [Anon.],  Evidence  for  Deft. 

2  Stark.  Evid.  232,  n.  (1),  by  Metcalf ;  p.  2. 

McLellan  v.  Richardson,  1  Shepl.  82.    But  ^  Sykes  v.  Dunbar,  2  Selw.  N.  P.  815, 

on  the  trial  of  an  indictment  for  perjury,  [105r)|  ;  Huidekoper  v.  Cotton,  3  Watts, 

committed  in  giving  evidence  before  the  5(i ;   Ereeman  v.  Arkell,  1  C.  &  P.  135, 

grand  jury,  it  has  been  held,  that  another  137,  n.   (c)   [Commonwealth  v.  Hill,   11 

person,  who  was  present  as  a  witness  in  Cush.  137,  140]. 

the  same  matter,  at  the  same  time,  is  com-  '   12  Vin.  Abr.  20,  tit.  Evidence,  H ; 

petent  to  testify  to  what  the  prisoner  said  Imlay  v.  Rogers,  2  Halst.  347.     The  rule 

before  the  grand  jury  ;  and  that  a  police-  in  the  text  is  applicable  only  to  civil  ac- 

officer  in  waiting  was  competent  for  the  tions.    In  the  case  last  cited,  which  was 


CHAP.  XTTT.]      EVIDEKCE  EXCLUDED  FKOM  PUBLIC  POLICY.         295 

be  asked,  whether  twelve  of  then-  number  actually  concurred  in 
the  finding  of  a  bill,  the  certificate  of  the  foreman  not  being  con- 
clusive evidence  of  that  fact.^ 

§  252  a.  Proceedings  of  traverse  jurors.  On  similar  grounds  of 
public  policy,  and  for  the  protection  of  parties  against  fraud,  the 
law  excludes  the  testimony  of  traverse  jurors,  when  offered  to 
prove  misbehavior  in  the  jury  in  regard  to  the  verdict.  Formerly, 
indeed,  the  affidavits  of  jru'ors  have  been  admitted  in  support  of 
motions  to  set  aside  verdicts  by  reason  of  misconduct ;  but  that 
practice  was  broken  in  upon  by  Lord  Mansfield,  and  the  settled 
course  now  is  to  reject  them,  because  of  the  mischiefs  which  may 
result  if  the  verdict  is  thus  placed  in  the  power  of  a  single  jury- 
man.'^ 

§  2o3.  Communicatious  offensive  to  public  morals.  There  is  a 
fourth  species  of  evidence  which  is  excluded,  namely,  that  which 
is  indecent,  or  offensive  to  public  morals,  or  injurious  to  the  feel- 
ings or  interests  of  third  persons,  the  parties  themselves  having  no 
interest  in  the  matter,  except  what  they  have  impertinently  and 
voluntarily  created.  The  mere  indecency  of  disclosures  does  not, 
in  general,  suffice  to  exclude  them  where  the  evidence  is  neces- 
sary for  the  purposes  of  civil  or  criminal  justice  ;  as,  in  an  indict- 
ment for  a  rape  ;  or  in  a  question  upon  the  sex  of  one  claiming 
an  estate  entailed,  as  hen*  male  or  female ;  or  upon  the  legitimacy 
of  one  claiming  as  lawful  heir ;  or  in  an  action  by  the  husband 
for  criminal  conversation  with  the  wife.  In  these  and  similar 
cases  the  evidence  is  necessary,  either  for  the  proof  and  punish- 

trespass,  the  question  arose  on  a  motion  York,  vol.  ii.  p.  724,  §  31,  the  question  may 
for  a  new  trial,  for  the  rejection  of  the  be  asked,  even  in  civil  cases, 
grand  juror,  who  was  offered  in  order  to  ^  4  Hawk.  P.  C.  b.  2,  c.  2-5,  §  15; 
discredit  a  witness  ;  and  the  court  being  McLellan  v.  Richardson,  1  Shepl.  82; 
equally  divided,  the  motion  did  not  pre-  Low's  case,  4  Greenl.  439  ;  Common- 
vail.  Probablv  such  also  was  the  nature  wealth  v.  Smith,  9  Mass.  107. 
of  the  case  in  Clayt.  84,  pi.  140,  cited  by  2  Vaise  v.  Delaval,  1  T.  R.  11 ;  Jack- 
Viuer.  But  where  a  witness  before  the  son  v.  Williamson,  2  T.  R.  281  ;  Owen  v. 
grand  jury  has  committed  perjury  in  his  Warburton,  1  N.  R.  326;  Little  v.  Lar- 
testimony,  either  before  them  or  at  the  rabee,  2  Greenl.  37,  41,  n.,  where  the 
trial,  the  reasons  mentioned  in  the  text  cases  are  collected.  The  State  v.  Free- 
for  excluding  the  testimonj^  of  grand  man,  5  Conn.  348 ;  Meade  v.  Suiitli,  IG 
jurors  do  not  prevent  them  from  being  Conn.  346 ;  Straker  v.  Graham,  4  M.  & 
called  as  witnesses  after  the  first  indict-  W.  721  [Boston,  &c.  R.  R.  Corp.  v.  Dana, 
ment  has  been  tried,  in  order  to  establish  1  Gray,  83,  105  ;  Folsom  v.  Manchester, 
the  guilt  of  the  perjured  party.  See  4  11  Cush.  334,  337.  In  England,  no  mem- 
Bl.  Comm.  126,  n.  5,  by  Christian  ;  1  ber  of  the  Lords  or  Commons,  or  officer 
Chitty's  Crim.Law,  p.  [317].  Sir  J.  Fen-  of  either  house,  can  be  compelled  to 
wick's  case,  13  Howell's  St.  Tr.  010,  611 ;  disclose  what  takes  place  there.  Plun- 
5  St.  Tr.  72 ;  Wharton's  Am.  Crim.  Law,  kett  v.  Cobbett,  29  How.  St.  Tr.  71; 
p.  130.    By  the  Revised  Statutes  of  New  Chubb  v.  Salomons,  3  C.  &  K.  75]. 


296  LAW   OF  EVIDENCE.  [PAET  H. 

ment  of  crime,  or  for  the  vindication  of  rights  existing  before,  or 
independent  of,  the  fact  sought  to  be  disclosed.  But  where  the 
parties  have  voluntarily  and  impertinently  interested  themselves 
in  a  question  tending  to  violate  the  peace  of  society  by  exhibiting 
an  innocent  third  person  to  the  world  in  a  ridiculous  or  contempt- 
ible light,  or  to  disturb  his  own  peace  and  comfort,  or  to  offend 
public  decency  by  the  disclosures  which  its  decision  may  require, 
tlie  evidence  will  not  be  received.  Of  this  sort  are  wagers  or 
contracts  respecting  the  sex  of  a  third  person,^  or  upon  the  ques- 
tion whether  an  unmarried  woman  has  had  a  child,^  In  this  place 
may  also  be  mentioned  the  declarations  of  the  husband  or  wife 
that  they  have  had  no  connection,  though  living  together,  and 
that  therefore  the  offspring  is  spurious ;  which,  on  the  same 
general  ground  of  decency,  morality,  and  policy,  are  uniformly 
excluded.^ 

§  254.  Communications  bet-ween  husband  and  •wife.  Cowmunica- 
tions  betiveen  husband  and  wife  belong  also  to  the  class  of  privi- 
leged communications,  and  are  therefore  protected,  independently 
of  the  ground  of  interest  and  identity,  which  precludes  the  par- 
ties from  testifying  for  or  against  each  other.  The  happiness  of 
the  married  state  requires  that  there  should  be  the  most  milimited 
confidence  between  husband  and  wife  ;  and  this  confidence  the 
law  secures  by  providing  that  it  shall  be  kept  for  ever  inviolable ; 
that  nothing  shall  be  extracted  from  the  bosom  of  the  wife  which 
was  confided  there  by  the  husband.  Therefore,  after  the  parties 
are  separated,  whether  it  be  by  divorce  or  by  the  death  of  the 
husband,  the  wife  is  still  precluded  from  disclosing  any  conversa- 
tions with  him,  though  she  may  be  admitted  to  testify  to  facts 
which  came  to  her  knowledge  by  means  equally  accessible  to  any 
person  not  standing  in  that  relation.*    Their  general  incompetency 

^  Da  Costa  v.  Jones,  Cowp.  729.  *  Monroe  i;.  Twistleton,  Peake's  Evid. 

2  Ditcliljurn  v.  Goldsinitli,  4  Campb.  App.  Ixxxii.,  as  explained  by  Lord  Ellen- 
152.  If  the  siibjcct  of  the  action  isfrivo-  borough  in  Aveson  r.  Lord  Kinnaird,  G 
Ions,  or  the  question  impertinent,  and  this  East,  192,  198;  Doker  v.  Hasler,  Ry.  & 
is  ai)parent  on  the  record,  the  court  will  M.  198  ;  Stein  r.  Bowman,  13  Peters, 
not  proceed  at  all  in  the  trial.  Brown;?.  209,  223;  Coffin  v.  Jones,  13  Pick.  441, 
Leeson,  2  H.  Bl.  43 ;  Henkin  v.  Gerss,  2  445 ;  Edgell  v.  Bennett,  7  Vt.  536 ; 
Campb.  408.  Williams   v.   Baldwin,  Id.    503,  506,  per 

3  Goodright  v.  Moss,  Cowp.  594,  said,  l?oyce,  J.  [Murphy  v.  Com.,  23  Gratt. 
per  Lord  Mansfield,  to  have  been  solemnly  ( Va.)  900].  In  Beveridge  v.  Minter,  1  C. 
decided  at  the  Delegates.  Cope  v.  Cope,  &  P.  304,  where  the  widow  was  pernutted 
1  M.  &  Bob.  209,  per  Alderson,  J. ;  Rex  by  Abbott,  C.  J.,  to  testify  to  certain  ad- 
i'.  Book,  1  Wils.  340;  Rex  v.  Luffe,  8  niissionsofherdeceased  husband, relative 
East,  193,  202,  203;  Rex  r.  Kea,  11  I-'iist,  to  the  money  in  question,  this  point  was 
1 32 ;  Commonwealth  v.  Shepherd,  U  Binn.  not  considered,  the  objection  being  placed 
2bti.  wholly  on  the  ground  of  her  interest  in 


CHAP.  Xin.]      EVIDENCE.  EXCLUDED  FEOM  PUBLIC  POLICY.        297 

to  testify  for  or  against  each  other  will  he  considered  hereafter  in 
its  more  appropriate  place. ^ 

§  254  a.  Evidence  admissible,  though  illegally  obtained.  It  may  be 
mentioned  in  this  place,  that  though  papers  and  other  subjects  of 
evidence  may  have  been  illegally  taken  from  the  possession  of  the 
party  against  whom  they  are  offered,  or  otherwise  unlawfully 
obtained,  this  is  no  valid  objection  to  their  admissibility  if  they 
are  pertinent  to  the  issue.  The  court  will  not  take  notice  how 
they  were  obtained,  whether  lawfully  or  unlawfully,  nor  will  it 
form  an  issue  to  determine  that  question.^ 


the  estate.  See  also  2  Kent,  Comm.  180 ; 
2  Stark.  Evid.  399 ;  Robbins  v.  King,  2 
Leigh,  142,  144.  [See  Smitli  i-.  Potter,  1 
Williams,  304 ;  Goltra  v.  Wolcott,  14  111. 
89 ;  Stein  v.  Weidman,  20  ]Mo.  17.  In  an 
action  on  the  case  brought  by  a  husband 
for  criminal  conversation  with  his  wife, 
the  latter,  after  a  divorce  from  the  bonds 
of  matrimony  obtained  subsequent  to  the 
time  of  the  alleged  criminal  intercourse, 
is  a  competent  witness  for  the  plaintiff 


to  prove  the  charge  in  the  declaration. 
Dickerraan  v.  Graves,  6  Cush.  308 ; 
RatclifE  V.  Wales,  1  Hill,  03.] 

1  [See  iy^fra,  §§  834-34-5.] 

2  Commonwealth  v.  Dana,  2  Met.  329, 
337  ;  Leggett  v.  Tollervey,  14  East,  302 ; 
Jordan  v.  Lewis,  Id.  30G,  n.  [So  if  it  be 
obtained  by  fraud  or  falsehood,  Stiite  v. 
Jones,  54  Mo.  578  ;  or  by  duress.  State  v. 
Garrett,  71  N.  C.  85.  And  see  ante, 
%  229.] 


298 


LAW  OE  EVIDENCE. 


[PAUT  n. 


CHAPTER  XIV. 

OP  THE  NUMBER  OF  "WITNESSES,  AND   THE   NATURE  AND  QUAN- 
TITY  OF  PROOF   REQUIRED   IN  PARTICULAR   CASES. 

§  255.  Number  of  witnesses  in  treason.  Under  this  head  it  is 
not  proposed  to  go  into  an  extended  consideration  of  the  statutes 
of  treason,  or  of  frauds,  but  only  to  mention  briefly  some  instances 
in  which  those  statutes,  and  some  other  rules  of  law,  have  regu- 
lated particular  cases,  taking  them  out  of  the  operation  of  the 
general  principles  by  which  they  would  otherwise  be  governed. 
Thus,  in  regard  to  treasons^  though  by  the  common  law  the  crime 
was  sujEficiently  proved  by  one  credible  witness,^  yet,  considering 
the  great  weight  of  the  oath  or  duty  of  allegiance  against  the 
probability  of  the  fact  of  treason,^  it  has  been  deemed  expedient 
to  provide  ^  that  no  person  shall  be  indicted  or  convicted  of  high 
treason  but  upon  the  oaths  and  testimony  of  two  witnesses  to  the 
same  overt  act,  or  to  separate  overt  acts  of  the  same  treason,  unless 
upon  his  voluntary  confession  in  open  court.  We  have  already 
seen  that  a  voluntary  confession  out  of  coiu't,  if  proved  by  two 
witnesses,  is  sufficient  to  warrant  a  conviction  ;  and  that  in  Eng- 


1  Foster's  Disc,  p  233  ;  Woodbeck  v. 
Keller,  G  Cowen,  120;  McNally's  Evid. 
ol. 

2  This  is  conceived  to  be  the  true  foun- 
dation on  wliicli  the  rule  has,  in  modern 
times,  beeti  enacted.  The  manner  of  its 
first  introduction  into  the  statutes  was 
thus  stated  by  the  Lord  Chancellor,  in 
Lord  Stafford's  case,  T.  Haym.  408 : 
"  Upon  this  occasion,  my  Lord  Chancel- 
lor, in  the  Lords  House,  was  pleased  to 
communicate  a  notion  concerning  tlie  rea- 
son of  two  witnesses  in  treason,  wiiich  he 
said  was  not  very  familiar,  he  believed; 
and  it  was  this :  anciently  all  or  most  of 
the  judi^es  were  churciimen  and  ecclesias- 
tical persons,  and  by  tlie  canon  law  now, 
and  tiien,  in  use  all  over  the  Christian 
world,  none  can  be  condemned  of  heresy 
but  by  two  lawful  and  cre<iible  witnesses  ; 
and  bare  words  mny  make  a  heretic,  but 
not  a  traitor,  and  anciently  heresy  was 
treason  ;  and  from  thence  the  Parliament 
tlioupht  fit  to  ap])()int  tiiat  two  witnesses 
ought  to  be  for  proof  of  high  treason." 


3  This  was  done  by  Stat.  7  W.  III.  c. 
3,  §  2.  Two  witnesses  were  required  by 
the  earlier  statutes  of  1  Ed.  VI.  c.  12,  and 
6  &  6  Ed.  VI.  c.  11 ;  in  tlie  construction 
of  which  statutes,  the  rule  afterwards  de- 
clared in  Stat.  7  W.  III.  was  adopted.  See 
Hex  V.  Lord  Stafford,  T.  Raym.  407.  The 
Constitution  of  the  United  States  pro- 
vides that  "  No  person  shall  be  convict- 
ed of  treason,  unless  on  the  testimony  of 
two  witnesses  to  the  same  overt  act,  or 
on  confession  in  open  court."  Art.  3,  §  3, 
LL.  U.  S.  vol.  ii.  c.  3(),  §  1.  This  provi- 
sion has  been  adopted,  in  terms,  in  many 
of  the  State  constitutions.  But  as  in 
many  other  Slates  there  is  no  express  law 
requirinji  that  the  testimony  of  both  wit- 
nesses should  be  to  the  same  overt  act,  the 
rule  stated  in  the  text  is  conceived  to  be 
that  which  would  govern  in  trials  for  trea- 
son against  those  States  ;  though  in  trials 
in  the  other  States,  and  for  treason  against 
the  United  States,  the  constitutional  pro- 
vision would  confine  the  evidence  to  the 
same  overt  act. 


CHAP.  XIV.]  NUMBER   OF   WITNESSES.  299 

land  the  crime  is  well  proved  if  there  be  one  witness  to  one  overt 
act,  and  another  witness  to  another  overt  act,  of  the  same  species 
of  treason.!  It  is  also  settled  that  when  the  prisoner's  confession 
is  oifered,  as  corroborative  of  the  testimony  of  such  witnesses,  it 
is  admissible,  though  it  be  proved  by  only  one  witness  ;  the  law 
not  having  excluded  confessions,  proved  in  that  manner,  from  the 
consideration  of  the  jury,  but  only  provided  that  they  alone  shall 
not  be  sufficient  to  convict  the  prisoner.^  And  as  to  all  matters 
merely  collateral^  and  not  conducing  to  the  proof  of  the  overt 
acts,  it  may  be  safely  laid  down  as  a  general  rule,  that  whatever 
was  evidence  at  common  law  is  still  good  evidence  under  the 
express  constitutional  and  statutory  provision  above  mentioned.^ 
§  256.  No  overt  act  not  laid  in  the  indictment  provable.  It  may 
be  proper  in  this  place  to  observe  that  in  treason  the  rule  is 
that  no  evidence  can  be  given  of  any  overt  act  which  is  not 
expressly  laid  in  the  indictment.  But  the  meaning  of  the  rule 
is,  not  that  the  whole  detail  of  facts  should  be  set  forth,  but 
that  no  overt  act,  amounting  to  a  distinct  independent  charge, 
though  falling  under  the  same  head  of  treason,  shall  be  given 
in  evidence  unless  it  be  expressly  laid  in  the  indictment.  If, 
however,  it  will  conduce  to  the  proof  of  any  of  the  overt  acts 
which  are  laid,  it  may  be  admitted  as  evidence  of  such  overt 
acts.'*  This  rule  is  not  peculiar  to  prosecutions  for  treason ; 
though,  in  consequence  of  the  oppressive  character  of  some 
former  state  prosecutions  for  that  crime,  it  has  been  deemed 
expedient  expressly  to  enact  it  in  the  later  statutes  of  treason. 
It  is  nothing  more  than  a  particular  application  of  a  fundamental 
doctrine  of  the  law  of  remedy  and  of  evidence  ;  namely,  that  the 
proof  must  correspond  with  the  allegations,  and  be  confined  to 
the  point  in  issue.^  This  issue,  in  treason,  is,  whether  the  pris- 
oner committed  that  crime  by  doing  the  treasonable  act  stated  in 
the  indictment;  as,  in  slander,  the  question  is,  whether  the  de- 
fendant injured  the  plaintiff  by  maliciously  uttering  the  false- 
hoods laid  in  the  declaration ;  and  evidence  of  collateral  facts  is 

1  Supra,  §  235,  n. ;  Lord  Stafford's  *  Foster's  Disc.  p.  245 ;  1  Phil.  Evid. 
case,  7  Howell's  St.  Tr.  1527 ;  Foster's  471 ;  Deacon's  case,  18  Howell's  St.  Tr. 
Disc.  2.37  ;  1  Burr's  Trial,  196.  366 ;   s.   c.   Foster,  9 ;    Regicide's   case, 

2  Willis's  case,  15  Howell's  St.  Tr.  J.  Kely.  8,  9 ;  1  East,  P.  C.  121-123;  2 
623-625 ;  Grossfield's  case,  26  Howell's  Stark.  Evid.  800,  801. 

St.  Tr.  55-57  ;  Foster's  Disc.  241.  6  Supra,  §§  51-63. 

3  Supra,  §  235;    Foster's  Disc.   240, 
242;  1  East,  P.  C,  130. 


500 


LAW   OF  EVXDENCE. 


[part  n. 


admitted  or  rejected  on  the  like  principle  in  either  case,  accord- 
ingly as  it  does  or  does  not  tend  to  establish  the  specific  charge. 
Therefore  the  declarations  of  the  prisoner,  and  seditious  language 
used  by  him,  are  admissible  in  evidence  as  explanatory  of  his 
conduct,  and  of  the  nature  and  object  of  the  conspiracy  in  which 
he  was  engaged.^  And  after  proof  of  the  overt  act  of  treason,  in 
the  county  mentioned  in  the  indictment,  other  acts  of  treason 
(ending  to  prove  the  overt  acts  laid,  though  done  in  a  foreign 
country,  may  be  given  in  evidence. ^ 

§  257.  In  perjury.  In  proof  of  the  crime  of  perjury,  also,  it  was 
formerly  held  that  two  witnesses  were  necessary,  because  other- 
wise there  would  be  nothing  more  than  the  oath  of  one  man 
against  another,  upon  which  the  jury  could  not  safely  convict.^ 
But  this  strictness  has  long  since  been  relaxed  ;  the  true  princi- 
ple of  the  rule  being  merely  this,  that  the  evidence  must  be 
something  more  than  sufficient  to  counterbalance  the  oath  of 
the  prisoner,  and  the  legal  presumption  of  his  innocence."^  The 
oath  of  the  opposing  witness,  therefore,  will  not  avail,  unless  it 
be  corroborated  by  other  independent  circumstances.  But  it  is 
not  precisely  accurate  to  say,  that  these  additional  circumstances 


1  Rex  V.  Watson,  2  Stark.  116,  131 
[United  States  v.  Hanway,  2  Wallace, 
Jr.  13'.)]. 

-  Deacon's  case,  16  Howell's  St.  Tr. 
367;  8.  c.  Foster,  9;  Sir  Henry  Vane's 
case,  4th  res.,  6  Howell's  St.  Tr.  123,  129, 
n.;  1  East,  P.  C.  125,  126.  [See  post, 
vol.  iii.  2-16-248.1 

»  1  Stark.  Evid.  443;  4  Hawk.  P.  C. 
b.  2,  c.  46,  §  10 ;  4  Bl.  Comra.  358 ;  2 
Russ.  on  Crimes,  1791. 

•*  The  history  of  this  relaxation  of  the 
sternness  of  the  old  rule  is  thus  stated  by 
Mr.  Justice  Wayne,  in  delivering  tlie 
opinion  of  the  court  in  The  United  States 
V.  Wood,  14  Peters,  440,  441  :  "At  first, 
two  witnesses  were  required  to  convict  in 
a  case  of  perjury  ;  both  swearing  directly 
adversely  from  the  defendant's  oatli.  Con- 
temporaneously with  tliis  requisition,  the 
larger  number  of  witnesses  on  one  side  or 
the  other  prevailed.  Then  a  single  wit- 
ness, corroborated  by  other  witnesses, 
Bwearing  to  circumstances  bearing  di- 
rectly upon  the  imputed  cnr/ms  delirli  of 
a  defendant,  was  deemed  sufficient.  Next, 
as  in  the  case  of  Hex  /'.  Knill,  5  IJ.  &  A. 
929,  n.,  with  a  long  interval  between  it 
and  tiie  preceding,  a  witness,  who  gave 
proof  only  of  the  contradictory  oaths  of 
tiie  defendant  on  two  occasions,  one  be- 
ing an  examination  before  the  House  of 


Lords,  and  the  other  an  examination  be- 
fore the  House  of  Commons,  was  held  to 
be  sufficient ;  though  this  principle  had 
been  acted  on  as  earl}-  as  1764,  by  Jus- 
tice Yates,  as  may  be  seen  in  the  note  to 
the  case  of  The  King  v.  Harris,  5  B.  & 
A.  937,  and  was  acquiesced  in  by  Lord 
Mansfield,  and  Justices  Wilmot  and  As- 
ton. We  are  aware  that,  in  a  note  to 
Rex  V.  Mayliew,  6  C.  &  P.  315,  a  doubt 
is  implied  concerning  the  case  decided 
by  Justice  Yates  ;  but  it  has  the  stamp 
of  authenticity,  from  its  having  been  re- 
ferred to  in  a  case  hapi)ening  ten  years 
afterwards  before  Justice  C'liambre,  as 
will  appear  by  the  note  in  6  B.  «&  A.  937. 
Afterwards,  a  single  witness,  with  the 
defendant's  bill  of  costs  (not  sworn  to) 
in  lieu  of  a  sect)nd  witness,  delivered  by 
the  defendant  to  the  prosecutor,  was  held 
sufficient  to  contradict  his  oath;  and  in 
that  case  Lord  Denman  says,  'A  letter 
written  by  the  defendant,  contradicting 
liis  statement  on  oath,  would  be  sufficient 
to  make  it  unnecessary'  to  have  a  second 
witness.'  6  C.  &  P.  315.  We  tlnis  see 
that  this  rule,  in  its  i)roper  application, 
has  been  exjianded  beyond  its  literal 
terms,  as  cases  have  occurred  in  which 
proofs  have  been  oifered  equivalent  to 
the  end  intended  to  be  accomplished  by 
the  rule." 


CHAP.  XrV^]  NTTMBEK    OF   "S^^TNESSES.  301 

must  be  tantamount  to  another  witness.  The  same  effect  being 
given  to  the  oath  of  the  prisoner,  as  though  it  were  the  oath  of  a 
credible  witness,  the  scale  of  evidence  is  exactly  balanced,  and 
the  equilibrium  must  be  destroyed,  by  material  and  independent 
circumstances,  before  the  party  can  be  convicted.  The  additional 
evidence  needs  not  be  such  as,  standing  by  itself,  would  justify  a 
conviction  in  a  case  where  the  testimony  of  a  single  witness  would 
sujffice  for  that  purpose.  But  it  must  be  at  least  strongly  cor- 
roborative of  the  testimony  of  the  accusing  witness  ;  ^  or,  in  the 
quaint  but  energetic  language  of  Parker,  C.  J.,  "a  strong  and 
clear  evidence,  and  more  numerous  than  the  evidence  given  for 
the  defendant."  ^ 

§  257  a.  In  case  of  several  assignments.  When  there  are  several 
assignments  of  perjury  in  the  same  indictment,  it  does  not  seem 
to  be  clearly  settled,  whether,  in  addition  to  the  testimony  of  a 
single  witness,  there  must  be  corroborative  proof  with  respect  to 
each ;  but  the  better  opinion  is,  that  such  proof  is  necessary ; 
and  that,  too,  although  all  the  perjuries  assigned  were  committed 
at  one  time  and  place.^  For  instance,  if  a  person,  on  putting  in 
his  schedule  in  the  insolvent  debtor's  court,  or  on  other  the  like 
occasion,  has  sworn  that  he  has  paid  certain  creditors,  and  is  then 
indicted  for  perjury  on  several  assignments,  each  specifying  a 
particular  creditor  who  has  not  been  paid,  a  single  witness  with 
respect  to  each  debt  will  not,  it  seems,  suffice,  though  it  may  be 
very  difficult  to  obtain  any  fuller  evidence.^ 

1  Woodbeck  v.  Keller,  6  Cowen,  118,  this  point,  Eeg.  v.  Parker,  C.  &  Marsh. 
121,  per  Sutherland,  J.;  Champney's  646;  Reg.  v.  Champney,  2  Lewin,  258 ; 
case,  1  Lew.  Cr.  Cas.  2-58.  And  see  infra,  Reg.  v.  Gardiner,  8  C.  &  P.  737  ;  Reg.  v. 
§  381.  Roberts,  2  Car.  &  Kir.  614.     [See  post, 

2  The  Queen  v.  Muscot,  10  Mod.  194.  vol.  iii.  §  198.] 

See  also  The  State  v.  ISloWav,  1  Dev.  263,  a  R.  i-.  Virrier,  12  A.  &  E.  317,  324, 

265;  The  State  v.   Hay  ward,  1  Nott  &  per  Ld.  Denraan. 

McCord,  547  ;  Rex  i'.  Mayhew,  6  C.  &  P.  <  r.  y.  Parker,  C.  &  IMarsh.  639,  645- 

315  ;  Reg.  v.  Boulter,  16  Jur.  135 ;  Roscoe  647,  per  Tindal,  C.  J.     In  R.  v.  Mudie, 

on  Crim.  Evid.  686,  687;  Clark's  Execu-  1  M.  &  Rob.  128,   129,  Lord  Tenterden, 

cors  y.  Van  Reimsdyk,  9  Cranch,  IGO.    It  under  similar  circumstances,  refused  to 

must  corroborate  him  in  something  more  stop  the  case,  saying  that,  if  the  defend- 

than   some   sliglit    particulars.     Reg.   v.  ant  was  convicted,  he  might  move  for  a 

Yates,  1  Car.  &  Marsh.  139  [Reg.  v.  Boul-  new  trial.     He  was,  however,  acquitted, 

ter,  9  Eng.  L.  &  Eq.  537].    More  recently,  See  the  (London)  Law  Review,  &e.,  May, 

corroborative  evidence,  in   cases    where  1846,  p.  128.     [There  need   not  be  two 

more   than   one  witness   is   required  by  witnesses  in  the  case,  but  there  must  be 

law,  has  been  defined  by  Dr.  Lushington  sometliing  in  the  case  to  render  the  jury 

to  be  not  merely  evidence  showing  that  to  believe  one  rather  than  the  other,  — 

the  account   is   probable,  but   evidence  some  independent  evidence  in  corrobora- 

proving  facts  ejusdem  cjeneris,  and  tending  tion.     Reg.  v.  Boulter,  16  Jur.  135.     And 

to  produce  the  same  results.     Simmons  one  witness  is  sufficient  to  prove  the  fact 

V.  Simmons,  11  Jur.  830.     See  further  to  that  the  defendant  swore  as  alleged  in 


802  LAW   OF  EVIDENCE.  [PAET  H. 

§  258.  Corroborating  circumstances.  The  principle  that  one 
witness  with  corroborating  circumstances  is  sufficient  to  establish 
the  charge  of  perjury,  leads  to  the  conclusion  that  circumstances, 
without  any  tvitness,  when  they  exist  in  documentary  or  written 
testimony,  may  combine  to  the  same  effect;  as  they  may  combine, 
altogether  unaided  by  oral  proof,  except  the  evidence  of  their 
autlienticity,  to  prove  any  other  fact,  connected  with  the  declara- 
tions of  persons  or  the  business  of  human  life.  The  principle  is, 
that  circumstances  necessarily  make  a  part  of  the  proofs  of  human 
transactions  ;  that  such  as  have  been  reduced  to  writing,  in  un- 
equivocal terms,  when  the  writing  has  been  proved  to  be  authen- 
tic, cannot  be  made  more  certain  by  evidence  aliunde;  and  that 
such  as  have  not  been  reduced  to  writing,  whether  they  relate  to 
the  declarations  or  conduct  of  men,  can  only  be  proved  by  oral 
testimony.  Accordingly,  it  is  now  held  that  a  living  witness  of 
the  corpus  delicti  may  be  dispensed  with,  and  documentary  or 
written  evidence  be  relied  upon  to  convict  of  perjury,  — first,  where 
the  falsehood  of  the  matter  sworn  by  the  prisoner  is  directly 
proved  by  documentary  or  written  evidence  springing  from  him- 
self, with  circumstances  showing  the  corrupt  intent ;  secondly,  in 
cases  where  the  matter  so  sworn  is  contradicted  by  a  public 
record,  proved  to  have  been  well  known  by  the  prisoner  when  he 
took  the  oath,  the  oath  only  being  proved  to  have  been  taken ; 
and,  thirdly,  in  cases  where  the  party  is  charged  with  taking  an 
oath,  contrary  to  what  he  must  necessarily  have  known  to  be 
true ;  the  falsehood  being  shown  by  his  own  letters  relating  to 
the  fact  sworn  to,  or  by  any  other  written  testimony  existing 
and  being  found  in  his  possession,  and  which  has  been  treated  by 
him  as  containing  the  evidence  of  the  fact  recited  in  it.^ 

§  259.  Contradictory  oaths.  If  the  evidence  adduced  in  proof 
of  the  crime  of  perjury  consists  of  two  opposing  statements  of  the 
prisoner,  and  nothing  more,  he  cannot  be  convicted.     For  if  one 

the    indictment.      Com.   v.    PolLard,    12  well  be  convicted  of  perjury,  in  takincr, 

Met.    (Mass.)   225.     In   Venable's    case,  at  the  custom-house  in  New   York,  the 

after  a  confession  upon  inducement,  and  "  owner's   oatii    in   cases    where    goods, 

after  a  warning  from  tlie  court  and  tlie  wares,  or  morcliandise  liave  been  actually 

prisoner's  counsel,  a  confi'ssion  to  a  third  purchased,"  upon  the  evidence  of  the  in- 

person  was  held   admissible.     24   Gratt.  voice-book  of  his  father,  John  Wood,  of 

{ Va. )  O.'W.J  Saddlewortli,  England,  and  of  thirty-five 

'  Tlie  United  States  v.  Wood,  14  Pe-  letters  from  the  prisoner  to  his  father, 

ters,  440,  441.     In  this  case,  imder  the  disclosing  a  combination  between  them 

latter  head  of  the  rule  here  stated,  it  was  to  defraud  the  United  States,  by  invoic- 

lield,  that,  if  tlie  jury  were  satisfied  of  ing  and  entering  the  goods  shipped  at 

the  corrupt  intent,  the  prisoner   might  less  than  their  actual  cost. 


CHAP.  XIV.] 


NUMBER   OF  WITNESSES. 


803 


only  was  delivered  under  oath,  it  must  be  presumed,  from  the 
solemnity  of  the  sanction,  that  that  declaration  was  the  truth,  and 
the  other  an  error  or  a  falsehood ;  though  the  latter,  being  in- 
consistent with  what  he  has  sworn,  may  form  important  evidence, 
with  other  circumstances,  against  him.  And  if  both  the  contra- 
dictory statements  were  delivered  under  oath,  there  is  still  nothing 
to  show  which  of  them  is  false,  where  no  other  evidence  of  the 
falsity  is  given.^  If,  indeed,  it  can  be  shown  that,  before  giving 
the  testimony  on  which  perjury  is  assigned,  the  accused  had  been 
tampered  with,^  or  if  there  be  other  circumstances  in  the  case, 
tending  to  prove  that  the  statement  offered  in  evidence  against 
the  accused  was  in  fact  true,  a  legal  conviction  may  be  obtained.^ 
And  "  although  the  jury  may  believe  that  on  the  one  or  the  other 
occasion  the  prisoner  swore  to  what  was  not  true,  yet  it  is  not  a 
necessary  consequence  that  he  committed  perjury.  For  there  are 
cases  in  which  a  person  might  very  honestly  and  conscientiously 
swear  to  a  particular  fact,  from  the  best  of  his  recollection  and 
belief,  and  from  other  circumstances  subsequei^tly  be  convinced 
that  he  was  wrong,  and  swear  to  the  reverse,  without  meaning  to 
swear  falsely  either  time.* 

§  260.  Answers  in  chancery.      The  principles  above  stated,  in 
regard  to  the  proof  of  perjury,  apply  with  equal  force  to  the  case 


1  See  Alison's  Principles  of  the  Crim- 
inal Law  of  Scotland,  p.  481.  Reg.  v. 
Hughes,  1  C.  &  K.  519 ;  Peg.  v.  Wheat- 
land, 8  C.  &  P.  238;  Reg.  v.  Champney, 
2  Lew.  258. 

2  Anon.,  5  B  &  A.  939,  940,  n.  And 
see  2  Russ.  Cr.  &  M.  653,  n. 

3  Rex  V.  Knill,  5  B.  &  A.  929,  930,  n. 

*  Per  Holroyd,  J.,  in  Jackson's  case,  1 
Lewin's  Cr.  Cas.  270.  This  very  reason- 
able doctrine  is  in  perfect  accordance 
with  the  rule  of  the  Criminal  Law  of 
Scotland,  as  laid  down  by  Mr.  Alison,  in 
his  lucid  and  elegant  treatise  on  that 
subject,  in  the  following  terms  :  "  When 
contradictory  and  inconsistent  oatlis  have 
been  emitted,  the  mere  contradiction  is 
not  decisive  evidence  of  the  existence  of 
perjur}'  in  one  or  other  of  them  ;  but  the 
prosecutor  must  cstablisli  which  was  the 
true  one,  and  libel  on  the  other  as  con- 
taining the  falsehood.  Where  deposi- 
tions contradictory  to  each  other  have 
been  emitted  by  the  same  person  on  the 
same  matter,  it  may  with  certainty  be 
concluded  that  one  or  other  of  them  is 
false.  But  it  is  not  relevant  to  infer  per- 
jury in  so  loose  a  manner ;  but  the  pros- 


ecutor must  go  a  step -farther,  and  specify 
distinctly  wliich  of  the  two  contains  the 
falsehood,  and  peril  his  case  upon  the 
means  he  possesses  of  proving  perjurj' in 
that  deposition.  To  admit  the  o^jposite 
course,  and  allow  the  prosecutor  to  libel 
on  both  depositions,  and  make  out  his 
charge  by  comparing  them  together, 
without  distinguishing  wliich  contains 
the  truth  and  which  the  falsehood,  would 
be  directly  contrar}'  to  the  precision 
justly  required  in  criminal  proceedings. 
In  the  older  practice  this  distinction  does 
not  seem  to  have  been  distinctly  recog- 
nized ;  but  it  is  now  justly  considered 
indispensable,  that  tlie  perjury  sliould  be 
specified  existing  in  one,  and  the  other 
deposition  referred  to  in  modiim  proha- 
tionis,  to  make  out,  along  with  other  cir- 
cumstances, where  the  truth  really  lay." 
See  Alison's  Crini.  Law  of  Scotland, 
p.  475.  [In  bastardy  cases,  the  mother's 
testimony  ought  not  to  be  taken,  imless 
supported.  Certain  sanctions  are  usually 
required  by  statute.  Hodges  v.  Bennett, 
5  H.  &  N.  625;  Stiles  v.  Eastman,  21 
Pick.  (Mass.)  132.] 


304 


LAW   or  EVIDENCE. 


[PAET  n. 


of  an  ansiver  in  chancer!/.  Formerly,  when  a  material  fact  was 
directly  put  in  issue  by  the  answer,  the  courts  of  equity  followed 
the  maxim  of  the  Roman  law,  responsio  unius  non  omnino  audiatur, 
and  required  the  evidence  of  two  witnesses,  as  the  foundation  of 
a  decree.  But  of  late  years  the  rule  has  been  referred  more 
strictly  to  the  equitable  principle  on  wliich  it  is  founded  ;  namely, 
the  right  to  credit  which  the  defendant  may  claim,  equal  to  that 
of  any  other  witness  in  all  cases  where  his  answer  is  "  positively, 
clearly,  and  precisely  "  responsive  to  any  matter  stated  in  the  bill. 
For  the  plaintiff,  by  calling  on  the  defendant  to  answer  an  alle- 
gation which  he  makes,  thereby  admits  the  answer  to  be  evidence.^ 
In  such  case,  if  the  defendant  in  express  terms  negatives  the  alle- 
gations in  the  bill,  and  the  bill  is  supported  by  the  evidence  of 
only  a  single  witness,  affirming  what  has  been  so  denied,  the 
court  will  neither  make  a  decree,  nor  send  the  case  to  be  tried  at 
law ;  but  will  simply  dismiss  the  bill.^  But  the  corroborating 
testimony  of  an  additional  witness,  or  of  circumstances,  may  give  a 
turn  either  way  to  the  balance.  And  even  the  evidence  arising 
from  circumstances  alone  may  be  stronger  than  the  testimony  of 
any  single  witness.^ 

§  260  a.  Usage  of  trade.  It  has  also  been  held,  that  the  testi- 
mony of  one  witness  alone  is  not  sufficient  to  establish  any  usage 
of  trade,  of  wliich  all  dealers  in  that  particular  line  are  bound  to 
take  notice,  and  are  presumed  to  be  informed.* 


1  Gresley  on  Evid.,  p.  4. 

2  Cooth  V.  Jackson,  6  Ves.  40,  per 
Ld.  Eldon. 

8  I'ember  v.  Mathers,  1  Bro.  Ch.  52  ; 
2  Story  on  Eq.  Jiir.  §  1528 ;  Gresley  on 
Evid.  p.  4  ;  Clark  v.  Van  Reimsdyk,  9 
Cranch,  IGO;  Keys  v.  Williams,  3  Y.  & 
0.  55;  Dawson  v.  Masscy,  1  Ball  &  Beat. 
234;  Maddo.\  i".  Sullivan,  2  Rich.  Eq.  4. 
Two  witnesses  are  required,  in  Missouri, 
to  prove  the  handwriting  of  a  deceased 
Bubscribing  witness  to  a  deed,  when  all 
the  subscribing  witnesses  are  dead,  or 
cannot  be  had,  and  the  deed  is  offered  to 
a  court  or  niiigistrate  for  j)robate,pri'i)ara- 
tory  to  its  registration.  Rev.  Stat.  1835, 
p.  121 ;  Id.  1845,  c.  32,  §22;  {n/ni,  §  5(5'j, 
n.  Two  witnesses  are  also  required  to 
a  deed  of  conveyance  of  real  estate,  by 
the  statutes  of  New  H<tm/)sliire,  IWniont, 
Connecticut,  Geort/ia,  Florida,  Ohio,  Mirhi- 
(/an,  and  Arkansas.  See  4  Cruise's  Di- 
gest, tit.  32,  c.  2,  §  77,  n.  (Greenleaf's 
ed.)  [2d  ed.  (1850)  vol.  ii.  p.  341).  And 
in  Connecticut,  it  is  enacted,  that  no  per- 


son shall  be  convicted  of  a  capital  crime, 
without  the  testimony  of  two  witnesses, 
or  wliat  is  equivalent  thereto.  Rev. 
Stat.  1849,  tit.  6,  §  159.  [See  post,  vol.  iii. 
§  289  and  notes.  Hinkle  v.  Wanzer,  17 
How.  (U.  S.)  353;  Lawton  v.  Kittrodge,  10 
Foster,  500;  Ing  v.  Brown,  3  Md.  Ch. 
Decis.  521;  Glen  v.  Grovor,  3  Md.  212- 
Jordan  v.  Fenno,  8  Eng.  593 ;  Johnson  r 
McGruder,  15  Mo.  3tJ5 ;  Walton  v.  Wal- 
ton, 17  Id.  370  ;  White  v.  Crew,  10  Geo. 
410;  Calkins  v.  Evans,  5  Ind.  441.] 

*  Wood  V.  Ilickrdc,  2  Wend.  501  ; 
Parrott  v.  Thncher,  9  Pick.  420;  Thomas 
V.  Graves,  1  Const.  Rep.  150  [308] ;  post, 
vol.  ii.  §  252  and  notes.  [The  judge  so 
stated  in  Wood  v.  Ilickok,  but  this  was 
obiter,  Vail  v.  Rice,  1  Seld.  (N.  Y.)  155; 
and  neither  of  the  other  cases  supports 
the  proposition.]  As  attempts  have  iioen 
made  in  some  recent  instances  to  intro- 
duce into  ecclesiastical  councils  in  tiie 
United  States  the  old  and  absurd  rules  of 
the  canon  law  of  England,  foreign  as 
they  are   to   the   nature  and   genius  of 


CHAP.  XIV.] 


KinVIBER   OF  WITNESSES. 


305 


§  261.  When  written  evidence  required.      There   are  also   certaiu 
sales,  for  the  proof  of  wliich  the  law  requires  a  deed,  or  other 


American  institutions,  the  following  state- 
ment of.  the  light  in  which  those  rules 
are  at  present  regarded  in  England  will 
not  be  unacceptable  to  the  reader.  It  is 
taken  from  the  (London)  Law  Review, 
&c.,  for  May,  1846,  pp.  132-135.  "In 
the  ecclesiastical  courts,  the  rule  requir- 
ing a  plurality  of  witnesses  is  carried  far 
beyond  the  verge  of  common  sense ;  and 
although  no  recent  decision  of  those 
courts  has,  we  believe,  been  pronounced, 
expressly  determining  that  five,  seven, 
or  more  witnesses  are  essential  to  con- 
stitute full  proof,  yet  the  authority  of 
Dr.  Ayliffe,  who  states  that,  according  to 
the  canon  law,  this  amount  of  evidence 
is  required  in  some  matters,  has  been 
very  lately  cited,  with  apparent  assent, 
if  not  approbation,  by  the  learned  Sir 
Herbert  JennerFust.  (a)  The  case  in  sup- 
port of  wliich  the  above  high  authority 
was  quoted  was  a  suit  for  divorce.  (6)  In 
a  previous  action  for  criminal  conversa- 
tion, a  special  jury  had  given  £500  dam- 
ages to  the  husband,  who,  with  a  female 
servant,  (c)  had  found  his  wife  and  the 
adulterer  together  in  bed.  This  last  fact 
was  deposed  to  by  the  servant ;  but  as 
she  was  the  only  witness  called  to  prove 
it,  and  as  her  testimony  was  uncorrobo- 
rated, the  learned  judge  did  not  feel  him- 
self at  liberty  to  grant  the  promoter's 
prayer.    This  doctrine,   that   the   testi- 


mony of  a  single  witness,  though  omni 
exceptlone  major,  is  insuliicient  to  support 
a  decree  in  the  ecclesiastical  courts,  wlien 
such  testimony  stands  unsupported  by 
adminicular  circumstances,  has  been  fre- 
quently propounded  by  Lord  Stowell, 
both  in  suits  for  divorce,  (d)  for  defama- 
tion, (e)  and  for  brawling;  (/)  and  before 
the  new  Will  Act  was  passed,  (v)  Sir 
John  NichoU  disregarded  similar  evi- 
dence, as  not  amounting  to  legal  proof 
of  a  testamentary  act.  (h)  In  the  case, 
too,  of  Mackenzie  v.  Yeo,  (/)  when  a  codicil 
was  propounded,  purporting  to  iiave  been 
duly  executed,  and  was  deposed  to  by 
one  attesting  witness  only,  the  other  hav- 
ing married  the  legatee.  Sir  Herbert  Jen- 
ner  Fust  refused  to  grant  probate,  though 
he  admitted  the  witness  was  unexcep- 
tionable, on  the  ground  that  his  testimony 
was  not  confirmed  by  adminicular  cir- 
cumstances, and  that  the  probabilities  of 
the  case  inclined  against  the  factum  of 
such  an  instrument,  (j)  In  another  case, 
however,  the  same  learned  judge  ad- 
mitted a  paper  to  probate  on  the  testi- 
mony of  one  attesting  witness,  who  had 
been  examined  a  few  days  after  the  death 
of  the  testator,  though  the  other  witness, 
whose  deposition  had  not  been  taken  till 
two  years  and  a  half  afterwards,  declared 
that  the  will  was  not  signed  in  his  pres- 
ence.    In  this  case  there  was  a  formal 


(a)  Evans  v.  Evans,  1  Roberts,  Ecc. 
171.  The  passage  cited  from  Ayliffe, 
Par.  444,  is  as  follows :  "  Full  proof  is 
made  by  two  or  three  witnesses  at  the 
least.  For  there  are  some  matters  which, 
according  to  the  canon  law,  do  require 
five,  seven,  or  more  witnesses,  to  make 
full  proof."  The  same  learned  conmien- 
tator,  a  little  farther  on,  after  explaining 
that  "  liquid  -prooi  is  that  which  appears 
to  the  judge  from  the  act  of  court,  since 
that  cannot  be  properly  said  to  be  mani- 
fest or  notorious, "  adds,  "  By  the  canon 
law,  a  Jew  is  not  admitted  to  give  evi- 
dence against  a  Christian,  especialhj  if  he 
be  a  clergyman,  for  bj"^  that  law  the  proofs 
atjainst  a  cterc/i/man  ought  to  be  much  clearer 
than  against  a  layman."  Par.  448.  Dr. 
Ayliffe  does  not  mention  what  matters 
require  this  superabundant  proof,  but  we 
have  already  said  (vol.  i.  p.  380,  n.),  that 
in  the  case  of  a  cardinal  charged  with 
incontinence,  the  probatio,  in  order  to  be 
plena,  must  be  established  by  no  less  than 
seven  eye-witnesses  ;  so  improbable  does 
it  appear  to  the  Church  that  one  of  her 

VOL.  I.  20 


highest  dignitaries  should  be  guilty  of 
such  an  offence,  and  so  anxious  is  she  to 
avoid  all  possibility  of  judicial  scandal. 
This  is  adopting  with  a  vengeance  the 
principles  of  David  Hume  with  respect 
to  miracles. 

(b)  Evans  v.  Evans,  1  Roberts,  Ecc.  165. 

(c)  The  fact  that  the  witness  was  a 
woman  does  not  seem  to  have,  formed 
an  element  in  the  judgment  of  the  court, 
though  Dr.  Ayliffe  assures  his  readers, 
with  becoming  gravity,  that,  "  by  tlie 
canon  law,  more  credit  is  given  to  male 
than  to  female  witnesses."     Par.  545. 

(d)  Donnellan  v.  Donnellan,  2  Hagg. 
144  (Suppl.). 

(e)  Crompton  v.  Butler,  1  Cons.  460. 
(/)  Hutchins  v.  Denziloe,  1  Cons.  181, 

182. 

((/)  7  W.  IV.  and  1  Vict.  c.  26,  which, 
by  §  34,  applies  to  wills  made  after  the 
1st  of  January,  1833. 

(/()  Tlieakston  v.  Marson,  4  Hagg.  313, 
314. 

(/)  3  Curteis,  12-5. 

(J)  Gove  V.  Gawen,  3  Curteis,  151. 


806 


LAW   OF  EVIDENCE. 


f  PAUT  n. 


written  document.     Thus,  by  the  statutes  of  the  United  States,* 
and  of  Great  Britain,^  the  grand  bill  of  sale  is  made  essential  to 


attestation  clause,  and  that  fact  was  re- 
garded by  the  court  as  favoring  the  sup- 
position of  a  due  execution.  Thougli  the 
cases  cited  above  certainl}"^  establish  be- 
yond dispute,  that, by  tlie  canon  lawas  rec- 
ognized in  our  spiritual  courts,  one  uncor- 
roborated witness  is  insufficient,  tliey  as 
certainly  decide,  that,  in  ordinary  cases 
at  least,  two  or  more  witnesses  need  not 
depose  to  the  principal  fact ;  but  that  it 
will  suffice  if  one  be  called  to  swe.ir  to 
such  fact,  and  tlie  other  or  others  speak 
merely  to  confirmatory  circumstances. 
Nay,  it  would  seem,  from  some  expres- 
sions used,  that,  as  in  cases  of  perjury, 
documentary  or  written  testimony,  or 
the  statements  or  conduct  of  the  party 
libelled,  may  supply  the  place  of  a  second 
witness,  (a)    If,  indeed,   proceedings   be 


instituted  under  the  provisions  of  some 
statute,  which  expressly  enacts  that  the 
offence  shall  be  proved  by  two  lawful 
witnesses,  as,  for  instance,  the  Act  of  5 
&  6  Edw.  VI.  c.  4,  which  relates  to  brawl- 
ing in  a  church  or  churchyard,  the  court 
might  feel  some  delicacy  about  presum- 
ing that  such  an  enactment  would  be  satis- 
fied, by  calling  one  witness  to  the  fact, 
and  one  to  the  circumstances,  (i)  It 
seems  that  this  rule  of  the  canonists  de- 
pends less  on  the  authority  of  the  civil- 
ians than  on  the  Mosaic  code,  which  en- 
acts that  one  witness  shall  not  rise  up 
against  a  man  for  any  iniquity ;  but  at 
the  mouth  of  two  or  three  witnesses  shall 
the  matter  be  established,  (c)  Indeed, 
the  decretal  of  Pope  Gregory  the  Ninth, 
which  enforces  the   observance   of   this 


(fl)  In  Kendrick  v.  Kendrick,  4  Hagg. 
114,  the  testimony  of  a  single  witness  to 
adultery  being  corroborated  by  evidence 
of  the  misconduct  of  the  wife,  was  held 
to  be  sufficient.  Sir  J(jhn  NichoU  dis- 
tinctly stating,  "  that  there  need  not  be 
two  witnesses  ;  one  witness  and  circum- 
stances in  corroboration  are  all  that  the 
law  in  these  cases  requires,"  ])p.  lo6,  137  ; 
and  Dr.  Lushington  even  admitting,  that 
"  he  was  not  prepared  to  say  that  one 
clear  and  unimpeached  witness  was  in- 
sufficient," p.  130.  See  also  3  Burn.  Eccl. 
L.  304. 

{b)  Hutchins  v.  Denziloe,  1  Cons.  182, 
per  Ld.  Stowell. 

(f)  Dent.  c.  19,  v.  15 ;  Deut.  c.  17,  v. 
6;  Numbers,  c.  35,  v.  30.  [The  rule  of 
the  Jewish  law,  above  cited,  is  expressly 
applied  to  crimes  only,  and  extends  to  all 
persons,  lay  as  well  as  ecclesiastical.  If 
it  was  designed  to  have  any  force  beyond 
the  Jewish  theocracy  or  nation,  it  must, 
of  course,  be  the  ])aramoimt  law  of  the 
criminal  code  of  all  Christian  nations,  at 
this  day  and  for  ever.  St.  I'aul  makes 
merely  a  passing  allusion  to  it,  in  refer- 
ence to  the  third  time  of  his  coming  to 
tlie  Corinthians,  not  as  an  existing  rule 
of  their  law,  and  much  less  with  any 
view  of  imposing  on  them  the  municii>al 
regulations  of  Moses.     The  Mosaic  law, 


1  United   States    Navigation   Act   of 

1792,  c.  45,  §  14  ;  Stat.  1793,  c.  52  [Stat. 

1793,  0.  1  ;  Id.  c.  8,  vol.  i.  U.  S.  Statutes 
at  Large  (Little  &  Brown's  ed.),  page  294, 
and  page  305] ;  Abbott  on  Shijiping,  hy 
Story,  p.  45,  n.  (2) ;  3  Kent,  Comm.  143, 


except  those  portions  which  are  purely 
moral  and  universal  in  their  nature,  such 
as  the  ten  commandments,  was  never  to 
be  enforced  on  any  converts  from  heathen- 
ism. See  Acts,  c.  15;  Galatians,  c.  2, 
V.  11-14.  Of  course,  it  is  not  binding  on 
us.  Our  Saviour,  in  Matt.  c.  18,  v.  16, 
17,  directs  that,  in  a  case  of  private  dif- 
ference between  Christian  brethren,  the 
injured  party  shall  go  to  the  offender, 
taking  with  hira  "  one  or  two  more,"  who 
are,  in  the  first  instance,  to  act  as  arbi- 
trators and  peacemakers ;  not  as  wit- 
nesses ;  for  they  are  not  necessarily  sup- 
posed to  have  any  previous  knowledge 
of  the  case.  Afterwards  tiiese  may  be 
called  as  witnesses  before  the  Church,  to 
testify  what  took  place  on  that  occasion  ; 
and  their  number  will  satisfy  any  rule, 
even  of  the  Jewish  Church,  respecting 
the  number  of  witnesses.  But  if  this  pas- 
sage is  to  be  taken  as  an  indication  of 
the  number  of  witnesses,  or  quantity  of 
oral  proof  to  be  required,  it  cannot  be 
extended  beyond  the  case  for  which  it  is 
prescribed  ;  namely,  the  case  of  a  private 
and  personal  wrong,  prosecuted  before 
the  Church,  in  the  way  of  ecch'siastical 
discipline, and  this  only  where  the  already 
existing  rule  requires  more  than  one  wit- 
ness.    G.l 


149.     [See  also  Stat.  1850,  c.  27,  9  U.  S. 
Statutes  at  Large  (L.  &  B.'s  ed.),  440.] 

^  Stat.  6  Geo.  IV.  c.  109;  4  Geo.  IV. 
c.  48;  3  &  4  W.  IV.  c.  55,  §  31 ;  Abbott 
on  Shipping,  by  Slice,  jip.  47-52. 


CHAP.  xr\\J 


STATUTE   OF  FRAUDS. 


307 


the  complete  transfer  of  any  sliip  or  vessel ;  though,  as  between 
the  parties  themselves,  a  title  may  be  acquired  by  the  vendee 
without  such  document.  Whether  this  documentary  evidence  is 
required  b}^  the  law  of  nations  or  not,  is  not  perfectly  settled ; 
but  the  weight  of  opinion  is  clearly  on  the  side  of  its  necessity, 
and  that  without  this,  and  the  other  usual  documents,  no  national 
character  is  attached  to  the  vessel.^ 

§  262.  Statute  of  Frauds.  Written  evidence  is  also  required  of 
the  several  transactions  mentioned  in  the  Statute  of  Frauds^ 
passed  in  the  reign  of  Charles  II.,  the  provisions  of  which  have 
been  enacted,  generally  in  the  same  words,  in  nearly  all  of  the 
United  States.^  The  rules  of  evidence  contained  in  this  cele- 
brated statute  are  calculated  for  the  exclusion  of  perjurj-,  by 
requiring,  in  the  cases  therein  mentioned,  some  more  satisfactory 
and  convincing  testimony  than  mere  oral  e\ddence  affords.  The 
statute  dispenses  with  no  proof  of  consideration  which  was  previ- 
ously required,  and  gives  no  efficacy  to  written  contracts  which 
they  did  not  previously  possess.^  Its  policy  is  to  impose  such 
requisites  upon  private  transfers  of  property,  as,  without  being 


doctrine,  {n)  expressly  cites  St.  Paul  as 
an  authority,  where  lie  tells  the  Corinthi- 
ans that '  in  ore  duorum  vel  trium  testiuni 
Stat  omne  verbura.'  (6)  Now,  however 
well  suited  this  rule  might  have  been  to 
the  peculiar  circumstances  of  the  Jewish 
nation,  who,  like  the  Hindus  of  old,  the 
modern  Greeks,  and  other  enslaved  and 
oppressed  people,  entertained  no  very 
exalted  notions  on  the  subject  of  truth  ; 
and  who,  on  one  most  remarkable  occa- 
sion, gave  conclusive  proof  tliat  even  the 
necessity  of  calling  two  witnesses  was  no 
valid  protection  against  the  crime  of 
perjury,  (c) — it  may  well  be  doubted 
whether,  in  the  present  civilized  age, 
such  a  doctrine,  instead  of  a  protection, 
has  not  become  an  impediment  to  justice, 
and  whether,  as  such,  it  should  not  be 
abrogated.  That  this  was  the  opinion  of 
tiie  (!ommon-law  judges  in  far  earlier 
tiires  than  the  present,  is  apparent  from 
several  old  decisions,  which  restrict  the 
rule  to  causes  of  merely  spiritual  conu- 
sance, and  determine  that  all  temporal 
matters,  which  incidentally  arise  before 
the  ecclesiastical  courts,  may,  and  indeed 


must,  be  proved  there  as  elsewhere,  by 
such  evidence  as  the  common  law  would 
allow."  [d)  See  also  Best's  Principles  of 
Evidence,  §  390-394 ;  Wills  on  Circumst. 
Evid.  p.  23  ;  2  H.  Bl.  101 ;  2  Inst.  608. 

1  Abbott  on  Shipping,  by  Story,  p.  1, 
n.  (l),and  cases  there  cited;  Id.  p.  27, 
n.  (1) ;  Id.  p.  45,  n.  (2) ;  Ohl  v.  The  Eagle 
Ins.  Co.,  4  Mason,  172 ;  Jacobsen's  Sea 
Laws,  b.  1,  c.  2,  p.  17  [3  Kent,  Comra. 
130]. 

2  29  Car.  2,  c.  3;  4  Kent,  Comm.  95, 
and  n.  (h),  (4th  ed.).  The  Civil  Code  of 
Louisiana,  art.  2415,  without  adoptinf:^ 
in  terms  the  provisions  of  the  Statute  of 
Frauds,  declares  generally  that  all  verbal 
sales  of  immovable  property  or  slaves 
shall  be  void.  4  Kent,  Comm.  4.50,  n.  («), 
(4th  ed. ).  [For  the  general  provisions  of 
the  existing  English  statutes,  and  of  the 
statutes  of  all  tiie  United  States  except 
Louisiana,  and  excepting  Kansas  and  Min- 
nesota, admitted  into  the  Union  since  the 
publication  of  his  volume,  see  Browne 
on  Stat,  of  Frauds,  Appendix,  pp.  501- 
532.] 

3  2  Stark.  Evid.  341. 


(a)  Dec.  Greg.  lib.  2,  tit.  20,  c.  2-3. 

(6)   2  Cor.  c.  13,  v.  1. 

(c)    St.  Matthew,  c.  26,  v.  60,  61. 

{d)  Richardson  v.  Disborow,  1  Vent. 


291;  Shotter  v.  Friend,  2  Salk.  547; 
Breedon  v.  Gill,  Ld.  Raym.  221.  See 
further,  3  Burn,  Eccl.  L.  304-308. 


308 


LAW   OF  EVIDENCE. 


[PABT  n. 


hinderances  to  fair  transactions,  may  be  either  totally  inconsist- 
ent with  dishonest  projects,  or  tend  to  multiply  the  chances  of 
detection.^     The  object  of  the  present  work  will  not  admit  of  an 


1  Roberts  on  Fnauds,  Pref.  xxii.  This 
statute  introduced  no  new  principle  into 
the  law;  it  was  new  in  England  only  in 
the  mode  of  proof  which  it  required. 
Some  protective  regulations,  of  the  same 
nature,  may  be  found  in  the  early  codes 
of  most  of  the  northern  nations,  as  well  as 
in  the  laws  of  the  Anglo-Saxon  princes  ; 
the  prevention  of  frauds  and  perjuries 
being  souglit,  agreeably  to  the  simplicity 
of  those  unlettered  times,  by  requiring  a 
certain  number  of  witnesses  to  a  valid 
sale,  and  sometimes  by  restricting  such 
sales  to  particular  places.  In  the  Anglo- 
Saxon  laws,  such  regulations  were  quite 
familiar ;  and  the  Statute  of  Frauds  was 
merely  tlie  revival  of  obsolete  provisions, 
demanded  by  the  circumstances  of  the 
times,  and  adapted,  in  a  new  mode  of 
proof,  to  the  improved  condition  and 
habits  of  the  trading  community.  By  the 
laws  of  Lotharius  and  Edric,  kings  of 
Kent,  §  16,  if  a  Kentish  man  purchased 
any  thing  in  London,  it  must  be  done  in 
the  presence  of  two  or  three  good  citizens, 
or  of  the  mayor  of  the  city.  (Canciani, 
Leges  Barbarorum  Antiquae,  vol.  iv. 
]).  "i-jl.)  The  laws  of  Iving  Edward  the 
Elder  (De  jure  et  lite,  §  1)  required  the 
testimony  of  the  mayor,  or  some  other 
credible  person,  to  every  sale,  and  prohib- 
ited all  sales  out  of  tiie  city.  (Cancian. 
ub.  sup.  p.  256.)  King  Athelstan  prohib- 
ited sales  in  the  country,  above  the  value 
of  twenty  pence;  and,  for  those  in  tiie 
city,  he  required  the  same  formalities 
as  in  the  laws  of  Edward.  (Id.  pp.  261, 
262,  LL.  Athelstani,  §  12.)  By  the  laws 
of  King  Ethelred,  every  freeman  was  re- 
quired to  have  his  surety  (fidejussor), 
without  whom,  as  well  as  other  evidence, 
tlu're  could  be  no  valid  sale  or  barter. 
"  NuUus  homo  faciat  alterutrum,  nee 
emit,  ncc  permutet,  nisi  fidejussorem 
habeat,  et  testimonium."  (Id.  p.  287, 
LL.  Ethelredi,  §§  1,4.)  In  the  Concilium 
Seculare  of  (Canute,  §  22,  it  was  provided, 
that  there  should  be  no  sale,  al)ove  the 
value  of  four  pence,  whether  in  the  city  or 
country,  without  tlie  presence  of  four  wit- 
nesses. (Id.  p.  30.5.)  The  same  rule,  in 
nearly  the  same  wonls,  was  enacted  by 
William  the  Conqueror.  (Id.  p.  357, 
LL  Guil.  Conq.  §  43.)  Afterwards,  in  the 
Charter  of  the  Conqueror  (§  60),  no  cat- 
tle ("nulla  viva  pecunia,"  scil.  aiiimalia) 
could  be  legally  sold,  utdess  in  the  cities, 
and  in  the  presence  of  three  witnesses. 
(Cancian.  ub.  sup.  p.  360,  Leges  Anglo- 


Saxonicffi,  p.  108  (o).)  Among  the  an- 
cient Sueones  and  Gotlis,  no  sale  was 
originally  permitted  but  in  the  presence 
of  witnesses, and  (permediat-ires)  through 
the  medium  of  brokers.  The  witnesses 
were  required  in  order  to  preserve  the 
evidence  of  the  sale  ;  and  the  brokers,  or 
mediators  (ut  pretium  moderarentur),  to 
prevent  extortion,  and  to  see  to  the  title. 
But  these  formalities  were  afterwards  dis- 
pensed with,  except  in  the  sale  of  articles 
of  value  (res  pretiosae),  or  of  great  amount. 
(Cancian.  ub.  sup.  p.  231,  n.  4.)  Aliena- 
tions of  lands  were  made  only  (publicis 
literis)  by  documents  legally  authenti- 
cated. By  the  Danish  law,  lands  in  the 
city  or  country  might  be  exchanged  with- 
out judicial  appraisement  (per  tabulas 
manu  signoque  permutantis  affixas),  by 
deed,  under  the  hand  and  seal  of  the 
party.  (Id.  p.  261,  n.  4.)  The  Roman 
law  required  written  evidence  in  a  great 
variety  of  cases,  embracing,  among  many 
others,  all  those  mentioned  in  the  Statute 
of  Frauds ;  which  are  enumerated  by  N. 
De  Lescut,  De  Exam.  Testium,  Cap.  26. 
(Farinac.  Oper.  Tom.  ii.  App.  243.)  See 
also  Brederodii  Repertorium  Juris,  col. 
984,  verb.  Scriptura.  Similar  provisions, 
extending  in  some  cases  even  to  the  proof 
of  payment  of  debts,  were  enacted  in  the 
statutes  of  Bologna  (A.  D.  1454),  Milan 
(1498),  and  Naples,  which  are  prefixed  to 
Danty's  Traite'de  laFreuve,parTemoins. 
By  a  perpetual  edict  in  the  Archduchy 
of  Flanders  (A.  D.  1611),  all  sales,  testa- 
ments, an<l  contracts  whatever,  above  the 
value  of  three  hundred  livres  Artois,  were 
required  to  be  in  writing.  And  iti  France, 
by  the  Ordonnance  de  Mouliiis  (A.  D. 
15GG),  confirmed  by  that  of  1667,  parol  or 
verbal  evidence  was  excluded  in  all  cases, 
where  the  subject-matter  exceeded  the 
value  of  one  hundred  livres.  See  Danty, 
de  la  Preuve,  &c.,  passim  ;  7  Poth.  ffiu- 
vres,  &c.,  4to,  p  56;  Traite  de  la  Procc'd. 
Civ.  c.  3,  art.  4,  Regie  3me;  1  Poth.  on 
Obi.  part  4,  c.  2,  arts.  1,  2,  3,  5;  Com- 
mercial Code  of  France,  art.  10'.).  The 
date«  of  these  regulations,  and  of  the  Stat- 
ute of  Fraufls,  and  the  cotmtries  in  which 
they  were  adopted,  are  strikingly  indica- 
tive of  the  revival  and  progress  of  com- 
merce. Among  the  Jews,  lands  were 
conveyed  by  deed  only,  from  a  very  early 
period,  as  is  evident  from  the  transaction 
mentioned  in  Jer.  xxxii.  10-12,  where 
the  principal  document  was  "sealed  ac- 
cording to  the  law  and  custom,"  in  tho 


CHAP.  XIV.]  STATUTE  OF  FRAUDS.  309 

extended  considercation  of  the  provisions  of  this  statute,  but 
will  necessarily  restrict  us  to  a  brief  notice  of  the  rules  of  evi- 
dence which  it  has  introduced. 

§  263.  Conveyances  of  interest  in  lands.  By  this  statute,  the 
necessity  of  some  writing  is  universally  required,  upon  all  convey- 
ances of  lands,  or  interest  in  lands,  for  more  than  three  years  ; 
all  interests,  whether  of  freehold  or  less  than  freehold,  certain  or 
uncertain,  created  by  parol  without  writing,  being  allowed  only 
the  force  and  effect  of  estates  at  will ;  except  leases,  not  exceed- 
ing the  term  of  three  years  from  the  making  thereof,  whereon 
the  rent  reserved  shall  amount  to  two-thirds  of  the  improved 
value.  The  term  of  three  years,  for  which  a  parol  lease  may  be 
good,  must  be  only  three  years  from  the  making  of  it ;  but  if  it 
is  to  commence  in  futnro,  yet  if  the  term  is  not  for  more  than 
three  years,  it  will  be  good.  And  if  a  parol  lease  is  made  to  hold 
from  year  to  year,  during  the  pleasure  of  the  parties,  this  is  ad- 
judged to  be  a  lease  only  for  one  year  certain,  and  that  every 
year  after  it  is  a  new  springing  interest,  arising  upon  the  first 
contract,  and  parcel  of  it ;  so  that  if  the  tenant  should  occupy  ten 
years,  still  it  is  prospectively  but  a  lease  for  a  year  certain,  and 
therefore  good,  within  the  exception  of  the  statute  ;  though  as  to 
the  time  past  it  is  considered  as  one  entire  and  valid  lease  for  so 
many  years  as  the  tenant  has  enjoyed  it.^  But  though  a  parol 
lease  for  a  longer  period  than  the  statute  permits  is  void  for  the 
excess,  and  may  have  only  the  effect  of  a  lease  for  a  year,  yet  it 
may  still  have  an  operation,  so  far  as  its  terms  apply  to  a  ten- 
ancy for  a  year.  If,  therefore,  there  be  a  parol  lease  for  seven 
years  for  a  specified  rent,  and  to  commence  and  end  on  certain 
days  expressly  named  ;  though  this  is  void  as  to  duration  of 
the  lease,  yet  it  must  regulate  all  the  other  terms  of  the  ten- 
ancy .^ 

§  264.  Leases.  By  the  same  statute,  no  leases,  estates,  or 
interests,  either  of  freehold,  or  terms  of  years,  or  an  uncertain 
interest,  other  than  copyhold  or  customary  interests  in  lands, 
tenements,  or  hereditaments,  can  be  assigned,  granted,  or  surren- 
dered, unless  by  deed  or  writing,  signed  by  the  party,  or  his 

presence  of  witnesses;  and  another  writ-  ^  Roberts    on    Frauds,    pp.    241-244 

ing,  or  "open  evidence,"  was  also  taken,  [Browne  on  Stat,  of  Frauds,  §§  1-40]. 
probably,  as  Sir  John  Chardin  tliouglit,  2  Dog  v.  Bell,  5  T.  R.  471  [Browne  on 

for  common  use,  as  is  the  manner  in  tlie  Stat,  of  Frauds,  §  39]. 
East  at  tliis  day. 


810  LAW   OF  EVIDENCE.  [PAET  U. 

agent  authorized  by  writing,^  or  by  operation  of  law.  At  com- 
mon law,  surrenders  of  estates  for  life  or  years  in  things  corpo- 
real were  good,  if  made  by  parol ;  but  things  incorporeal,  lying  in 
grant,  could  neither  be  created  nor  surrendered  but  by  deed.^ 
The  effect  of  this  statute  is  not  to  dispense  with  any  evidence 
required  by  the  common  law,  but  to  add  to  its  provisions  some- 
what of  security,  by  requiring  a  new  and  more  permanent  species 
of  testimony.  Wherever,  therefore,  at  common  law,  a  deed  was 
necessary,  the  same  solemnity  is  still  requisite ;  but  with  respect 
to  lands  and  tenements  in  possession,  which  before  the  statute 
might  have  been  surrendered  by  parol,  that  is,  by  words  only, 
some  note  in  writing  is  now  made  essential  to  a  valid  surrender.^ 
§  265.  Cancellation  of  deeds.  As  to  the  effect  of  the  cancellation 
of  a  deed  to  devest  the  estate,  operating  in  the  nature  of  a  sur- 
render, a  distinction  is  taken  between  things  lying  in  livery,  and 
those  which  lie  only  in  grant.  In  the  latter  case,  the  subject 
being  incorporeal,  and  owing  its  very  existence  to  the  deed,  it 
appears  that  at  common  law  the  destruction  of  the  deed  by  the 
party,  with  intent  to  defeat  the  interest  taken  under  it,  will  have 
that  effect.  Without  such  intent,  it  will  be  merely  a  case  of 
casual  spoliation.  But  where  the  thing  lies  in  livery  and  manual 
occupation,  the  deed  being,  at  common  law,  only  the  authentica- 
tion of  the  transfer,  and  not  the  operative  act  of  conveying  the 
property,  the  cancellation  of  the  instrument  will  not  involve  the 
destruction  of  the  interest  conveyed.*  It  has  been  thought,  that, 
since  writing  is  now  by  the  statute  made  essential  to  certain 
leases  of  hereditaments  lying  in  livery,  the  destruction  of  the 
lease  would  necessarily  draw  after  it  the  loss  of  the  interest  itself.^ 
But  the  better  opinion  seems  to  be,  that  it  will  not;  because  the 
intent  of  the  statute  is  to  take  away  the  mode  of  transferring 
interests  in  lands  by  symbols  and  words  alone,  as  formerly  used, 
and  therefore  a  surrender  by  cancellation,  which  is  but  a  sign,  is 

1  In  the  statutes  of  some  of  the  United  '  Roberts  on  Frauds,  p.  248  [Browne 
States,  tlie  words  "  autliorized  by  writ-     on  Statute  of  Frauds,  §  41-57]. 

lug"  are  omitted;  in  wiiicli  case  it  is  suf-  *  Roberts   on    Frauds,  pp.  248,  249; 

ficient  that  the  apent  be  authorized  by  Bolton  v.  Bp.  of  Carlisle,  2  H.  Bl.  263, 

parol,  in  order  to  make  a  binding  con-  204;    Doe  v.  Bingiiam,  4  B.  &  A.  G72; 

truct  of  sale,  provided  the  contract  itself  Holbrook  v.  Tirrell,  9   Pick.  105;  Bots- 

be  made  in  writing;  but  his  autiiority  to  ford  v.  Morehouse,  4  Conn.  550;  Gilbert 

convey    must    be    by    deed.      Story    on  v.  Bulkley,  5  Comi.  202;  Jackson  i>.  Chase, 

Agency,    §    60;    Alna    v.    Plunimer,    4  2  Johns.  86.     See  i»/m,  §  508. 
Creenl.  258.  6  4   Bac.   Abr.   218,   tit  Leases  and 

2  Co.Lit.337/A838rt;  2Shep.Touchst.  Terms  from  Years,  T. 
(by  Preston),  p.  300. 


eJHAP.  XrV.] 


STATUTE  OF  FRAUDS. 


311 


also  taken  away  at  law ;  though  a  symbolical  surrender  may  still 
be  recognized  in  chancery  as  the  basis  of  relief.^  The  surrender 
m  law,  mentioned  in  the  statute,  is  where  a  tenant  accepts  from 
tiis  lessor  a  new  interest,  inconsistent,  with  that  which  he  pre- 
viously had ;  in  which  case  a  surrender  of  his  former  interest  is 
presumed. - 

§  2G6.  Declarations  of  trust.  This  statute  further  requires  that 
the  declaration  or  creation  of  trusts  of  lands  shall  be  manifested 
and  proved  only  by  some  writing,  signed  by  the  party  creating 
the  trust ;  and  all  grants  and  assignments  of  any  such  trust  or 
confidence  are  also  to  be  in  writing,  and  signed  in  the  same 
manner.  It  is  to  be  observed,  that  the  same  statute  does  not 
require  that  the  trust  itself  be  created  by  writing,  but  only  that 
it  be  manifested  and  proved  by  writing ;  plamly  meaning  that 
there  should  be  evidence  in  writing,  proving  that  there  Avas  a 
trust,  and  what  the  trust  was.  A  letter  acknowledging  the  trust, 
and,  a  fortiori,  an  admission,  in  an  answer  in  chancery,  has  there- 
fore been  deemed  sufficient  to  satisfy  the  statute.^  Resulting 
trusts,  or  those  wliich  arise  by  implication  of  law,  are  specially 
excepted  from  the  operation  of  the  statute.     Trusts  of  tliis  sort 


1  Roberts  on  Frauds,  pp.  251,  252; 
Magennis  v.  McCullogh,  Gilb.  Eq.  235; 
Natchbolt  v.  Porter,  2  Vern.  112;  4 
Kent,  Comm.  104;  4  Cruise's  Dig.  p.  85 
(Greenleaf's  ed.),  tit.  32,  c.  7,  §§  5-7 
[2d  ed.  (1856)  vol.  ii.  p.  413  et  seq.]  ;  Roe 
V.  Archb.  of  York,  6  East,  86.  In  several 
of  tlie  United  States,  where  the  owner  of 
lands  which  he  holds  by  an  unregistered 
deed  is  about  to  sell  his  estate  to  a  stran- 
ger, it  is  not  unusual  for  him  to  surrender 
Ills  deed  to  his  grantor,  to  be  cancelled, 
the  original  grantor  thereupon  making  a 
new  deed  to  the  new  purchaser.  This 
redelivery  is  allowed  to  have  the  practical 
effect  of  a  surrender,  or  reconveyance  of 
the  estate,  the  tirst  grantee  and  those 
claiming  under  him  not  being  permitted 
to  give  parol  evidence  of  the  contents  of 
the  deed,  thus  surrendered  and  destroyed 
with  his  consent,  with  a  view  of  passing  a 
legal  title  to  his  own  alienee.  Farrar  v. 
Farrar,  4  N.  H.  191  ;  Commonwealth 
V.  Dudley,  10  Mass.  403 ;  Holbrook  v.  Tir- 
rell,  9  Pick.  105 ;  Barrett  v.  Thorndike, 
1  Greenl.  78.  See  4  Cruise's  Dig.  tit.  32, 
c.  1,  §  15,  n.  (Greenleaf's  ed.)  [2d  ed. 
(1856)  vol.  ii.  p.  300]. 

2  Roberts  on  Frauds,  pp.  259,  260 
[Browne  on  Stat,  of  Frauds,  §§  44,  59, 
CO;  Lyon  v.  Reed,  13  M.  &  W.  306]. 


3  Forster  v.  Hale,  3  Ves.  696,  707,  per 
Ld.  Alvanley  ;  4  Kent,  Comm.  305  ;  Rob- 
erts on  Frauds,  p.  95 ;  1  Cruise's  Dig. 
(by  Greenleaf)  tit.  12,  c.  1,  §§  36,  37,  p. 
390  [2d  ed.  (1856)  vol.  i.  p.  369] ;  Lewin 
on  Trusts,  p.  30.  Courts  of  equity  will 
receive  parol  evidence,  not  only  to  ex- 
plain an  imperfect  declaration  of  a  tes- 
tator's intentions  of  trust,  but  even  to  add 
conditions  of  trust  to  what  appears  a  sim- 
ple devise  or  bequest.  Bat  it  must  either 
be  fairly  presumable,  that  the  testator 
would  have  made  the  requisite  declara- 
tion, but  for  the  undertaking  of  the  per- 
son whom  he  trusted,  or  else  it  must  be 
shown  to  be  an  attempt  to  create  an  ille- 
gal trust.  Gresley  on  Evid.  in  Equity, 
p.  108  [292]  ;  Strode  v.  Winchester,  1 
Dick.  397.  See  White  &  Tudor's  Lead- 
ing Cases  in  Equity,  vol.  ii.  part  I,  p.  691 
[Browne  on  Stat,  of  Frauds,  §  97  et  seq. ; 
Dean  v.  Dean,  1  Stockton,  44.  In  Con- 
necticut, it  has  been  held,  that  where  a 
husband  conveyed  land  to  his  father, 
without  consideration,  but  under  a  jiarol 
agreement  that  the  father  should  convey 
it  to  the  wife  of  the  son,  parol  evidence 
was  admissible  to  establish  the  trust  in 
favor  of  the  wife.  Hayden  v.  Denslow, 
27  Conn.  335]. 


312  LAW  OF  EVIDENCE.  [PABT  H. 

are  said  by  Lord  Hardwicke  to  arise  in  three  cases :  first,  where 
the  estate  is  purchased  in  the  name  of  one  person,  but  the  money 
paid  for  it  is  the  property  of  another ;  secondly,  where  a  convey- 
ance is  made  in  trust,  declared  only  as  to  part,  and  the  residue 
remains  undisposed  of,  nothing  being  declared  respecting  it; 
and,  thirdly,  in  certain  cases  of  fraud. ^  Other  divisions  have 
been  suggested ;  ^  but  they  all  seem  to  be  reducible  to  these  three 
heads.  In  all  these  cases,  it  seems  now  to  be  generally  conceded 
that  parol  evidence,  though  received  with  great  caution,  is  ad- 
missible t.)  establish  the  collateral  facts  (not  contradictory  to 
the  deed,  unless  in  the  case  of  fraud)  from  which  a  trust  may 
legally  result ;  and  that  it  makes  no  difference  as  to  its  admissi- 
bility whether  the  supposed  purchaser  be  living  or  dead.^ 

§  267.  Executors  and  administrators.  Written  evidence,  signed 
by  the  party  to  be  charged  therewith,  or  by  his  agent,  is  by  the 
same  statute  required  in  every  case  of  contract  by  an  executor  or 
administrator,  to  answer  damages  out  of  his  own  estate;  every 
promise  of  one  person  to  answer  for  the  debt,  default,  or  mis- 
carriage of  another;  every  agreement  made  in  consideration  of 
marriage,  or  which  is  not  to  be  performed  within  a  year  from 
the  time  of  making  it ;  and  every  contract  for  the  sale  of  lands, 
tenements,  or  hereditaments,  or  any  interest  in  or  concerning 
them.  The  like  evidence  is  also  required  in  every  case  of  con- 
tract for  the  sale  of  goods,  for  the  price  of  .£10  sterling  or  up- 
wards,* unless  the  buyer  shall  receive  part  of  the  goods  at  time 

1  Lloyd  V.  Spillet,  2  Atk.  148,  150.  parol  evidence  is  admissible  to  establish 

2  1  Lomax's  Di<jest,  p.  200.  a   fact   from   which   the   law  will   raise 

3  3  Sugden  on  Vendors,  256-2G0  (10th  or  imply  a  trust,  but  not  to  prove  any 
ed.) ;  2  Story,  Eq.  Jurisp.  §  1201,  n.  ;  declaration  of  trust,  or  agreement  of  the 
Lench  v.  Lench,  10  Ves.  517 ;  Boyd  v.  parties  for  a  trust.  Moore  v.  Moore,  38 
McLean,    1    Johns.    Cli.   682 ;    4    Kent,  N.  H.  382.] 

Comm.  305;  Pritchard  v.  Brown,  4  N.  *  The  sum  here  required  is  different 
H.  397.  See  also  an  article  in  3  Law  in  the  several  States  of  the  Union,  vary- 
Mag.  p.  131,  where  the  English  cases  on  ing  from  thirty  to  fifty  dollars.  [See 
this  subject  are  reviewed.  The  American  Browne  on  Stat.of  Framls,  Appendix,  pp. 
decisions  are  collected  in  Mr.  Rand's  note  60.3-532.]  But  the  rule  is  every  wliere  tiie 
to  the  case  of  Goodwin  v.  Hubbard,  15  same.  By  the  statute  of  1)  Geo.  IV.  c. 
Mass.  218.  In  ,\[(iss(ichitsetts,  there  are  14,  this  provision  of  the  Statute  of  Frauds 
dicid  api)arently  to  the  effect  that  parol  is  extended  to  contracts  executory,  for 
evidence  is  r  ot  admissible  in  these  cases  ;  goods  to  be  manufactured  at  a  future  day, 
but  the  point  docs  not  seem  to  have  been  or  otherwise  not  in  a  state  fit  for  deliv- 
dlrectly  in  judgment,  unless  it  is  involved  ery  at  the  time  of  making  the  contract, 
in  the  decision  in  Bullard  v.  Briggs,  7  Shares  in  a  joint-stock  company,  or  a  pro- 
Pick.  633,  where  parol  evidence  was  ad-  jected  railway,  are  held  not  to  be  goods 
niittcd.  See  Storer  v.  Batson,  8  Mass.  or  chattels,  within  the  meaning  of  the 
431,442;  Northampton  Bank  y.  Whiting,  statute.  Humble  v.  Mitchell,  il  Ad.  & 
12  Mass.  104,  100;  Goodwin  i>.  Hubbard,  El.  205;  Tempest  v.  Kilner,  3  M.  G.  &  S. 
15  Mass.  210,  217.     [In  New  Hampshire,  251 ;  Bowlby  u.  Bell,  Id.  284. 


CHAP.  XIY.] 


STATUTE  OF  FEATJDS. 


813 


of  sale,  or  give  something  in  earnest,  to  bind  the  bargain,  or  in 
part  payment.^ 

§  268.  Evidence  may  be  collected  from  several  "writinga.  It  is 
not  necessary  that  the  written  evidence  required  by  the  Statute 
of  Frauds  should  be  comprised  in  a  single  document,  nor  that  it 
should  be  dra^vn  up  in  any  particular  form.  It  is  sufficient,  if 
the  contract  can  be  plainly  made  out,  in  all  its  terms,  from  any 
writings  of  the  partj^,  or  even  from  liis  correspondence.  But  it 
must  all  be  collected  from  the  writings;  verbal  testimony  not 
being  admissible  to  supply  any  defects  or  omissions  in  the  written 
evidence. 2  For  the  policy  of  the  law  is  to  prevent  fraud  and  per- 
jury, by  taking  all  the  enumerated  transactions  entirely  out  of 
the  reach  of  any  verbal  testimony  whatever.  Nor  is  the  place  of 
signature  material.  It  is  sufficient  if  the  vendor's  name  be  printed, 
in  a  bill  of  parcels,  provided  the  vendee's  name  and  the  rest  of 
the  bill  are  written  by  the  vendor.^  YaYqh  his  signature,  as  a 
witness  to  a  deed,  which  contained  a  recital  of  the  agreement, 
has  been  held  sufficient,  if  it  appears  that  in  fact  he  knew  of  the 
recital.*    Neither  is  it  necessary  that  the  agreement  or  memoran- 


1  2  Kent,  Comm.  493-495. 

2  Boydell  v.  Ururamond,  11  East,  142; 
Chitty  on  Contracts,  pp.  314-316  (4th  Am. 
ed.);  2  Kent,  Comm.  511;  Roberts  on 
Frauds,  p.  121 ;  Tawney  v.  Crowther,  3 
Bro.  Ch.  161,  318  ;  4  Cruise's  Dig.  (by 
Greenleaf)  pp.  33,  35-37,  tit.  32,  c.  3, 
§§  3,  16-26  [Greenleaf 's  2d  ed.  (1856) 
vol.  ii.  pp.  344-351  and  notes]  ;  Cooper 
V.  Smith,  15  East,  103;  Parkhurst  v. 
Van  Cortlandt,  1  Johns.  Ch.  280-282; 
Abeel  v.  Radeliff,  13  Johns.  297  ;  Smith 
r.  Arnold,  5  Mason,  414 ;  Ide  v.  Stanton, 
15  Vt.  685 ;  Sherburne  v.  Shaw,  1  N.  H. 
167;  Adams  v.  McMillan,  7  Port.  73; 
Gale  V.  Nixon,  6  Cowen,  445 ;  Meadows 
V.  Meadows,  3  McCord,  458;  Nichols 
V.  Johnson,  10  Conn.  192.  Whether 
the  Statute  of  Frauds,  in  requiring  that, 
in  certain  cases,  the  "agreement"  be 
proved  by  writing,  requires  that  the 
"  consideration  "  should  be  expressed  in 
the  writing,  as  part  of  the  agreement, 
is  a  point  which  lias  been  much  dis- 
cussed, and  upon  which  the  English 
and  some  American  cases  are  in  direct 
opposition.  The  English  courts  hold 
the  affirmative.  See  Wain  v.  Warlters, 
5  East,  10,  reviewed  and  confirmed  in 
Saunders  v.  Wakefield,  4  B.  &  Aid.  595; 
and  their  construction  has  been  followed 
in  New  York,  Sears  v.  Brink,  3  Johns. 
210 ;  Leonard  v.  Vredenburg,  8  Johns.  29. 


In  New  Hampshire,  in  Neelson  v.  San- 
borne,  2  N.  H.  413,  the  same  construc- 
tion seems  to  be  recognized  and  ap- 
proved. But  in  Massachusetts,  it  was 
rejected  by  the  whole  court,  upon  great 
consideration,  in  Packard  v.  Richardson, 
17  Mass.  122.  So  in  Maine,  Levy  v.  Mer- 
rill, 4  Greenl.  180  ;  in  Connecticut,  Sage  v. 
Wilcox,  6  Conn.  81 ;  in  New  Jersey,  Buck- 
ley V.  Beardsley,  2  South.  570;  and  in 
North  Carolina,  Miller  v.  Irvine,  1  Dev. 
&  Batt.  103 ;  and  now  in  South  Carolina, 
Fyler  v.  Givens,  Riley's  Law  Cas.  pp.  56, 
62,  overruling  Stephens  v.  Winn,  2  N.  «& 
McC.  372,  n. ;  Woodward  v.  Pickett,  Dud- 
ley's So.  Car.  Rep.  p.  30.  See  also  Vio- 
let V.  Patton,  5  Cranch,  142 ;  Tavlor  i'. 
Ross,  3  Yerg.  330 ;  3  Kent,  Comm.  122  ; 
2  Stark.  Evid.  350  (6th  Am.  ed.). 

8  Saunderson  v.  Jackson,  2  B.  &  P. 
238,  as  explained  in  Champion  v.  Plum- 
mer,  1  N.  R.  254 ;  Roberts  on  Frauds, 
pp.  124, 125 ;  Penniman  v.  Hartshorn,  13 
Mass.  87. 

*  Welford  v.  Beezely,  1  Ves.  6  ;  s.  c.  1 
Wils.  118.  The  same  rule,  with  its  quali- 
fication, is  recognized  in  the  Roman  law, 
as  applicable  to  all  subscribing  witnesses, 
except  those  whose  official  duty  obliges 
them  to  subscribe,  such  as  notaries,  &c. 
Menochius,  De  Praesump.  lib.  3;  Prae- 
sump.  66,  per  tot. 


314  LAW   OF  EVIDENCE.  [PABT  II. 

diim  be  signed  hy  both  parties,  or  that  both  be  legally  bound  to 
the  performance  ;  for  the  statute  only  requires  that  it  be  signed 
"by  the  party  to  be  charged  therewith,"  that  is,  by  the  defendant 
against  whom  the  performance  or  damages  are  demanded.^ 

§  269.  Writings  executed  by  attorney.  "Where  the  act  is  done 
hy  'procuration,  it  is  not  necessary- that  the  agent's  authority 
should  be  in  writing ;  except  in  those  cases  where,  as  in  the  first 
section  of  the  statute  of  29  Car.  II.  c.  3,  it  is  so  expressly  re- 
quired. These  excepted  cases  are  understood  to  be  those  of  an 
actual  conveyance,  not  of  a  contract  to  convey ;  and  it  is  accord- 
ingly held,  that  though  the  agent  to  make  a  deed  must  be  author- 
ized by  deed,  yet  the  agent  to  enter  into  an  agreement  to  convey 
is  sufficiently  authorized  by  parol  only.2  An  auctioneer  is  re- 
garded as  the  agent  of  both  parties,  whether  the  subject  of  the 
sale  be  lands  or  goods ;  and  if  the  whole  contract  can  be  made 
out  from  the  memorandum  and  entries  signed  by  him,  it  is  suffi- 
cient to  bind  them  both.^ 

§  270.  Meaning  of  the  word  "lands."  The  word  lands,  in  this 
statute,  has  been  expounded  to  include  every  claim  of  a  perma- 
nent right  to  hold  the  lands  of  another,  for  a  particular  purpose, 
and  to  enter  upon  them  at  all  times,  without  his  consent.  It  has 
accordingly  been  held,  that  a  right  to  enter  upon  the  lands  of 
another,  for  the  purpose  of  erecting  and  keeping  in  repair  a  mill- 
dam  embankment,  and  canal,  to  raise  water  for  working  a  mill, 
is  an  interest  in  land,  and  cannot  pass  but  by  deed  or  writing.* 
But  where  the  interest  is  vested  in  a  corporation,  and  not  in  the 

1  Allen  V.  Bennett,  3  Taunt.  169;  3  of  attorney,  bearin<?  date  prior  to  that  of 
Kent,  Comm.  510,  and  oases  there  cited  ;  the  deed,  this  is  a  subsequent  ratiticution, 
Shirley  r.  Shirley,  7  Blackf.  452 ;  Davis  operating  by  estoppel  against  the  princi- 
V.  Shields,  26  Wend.  341 ;  l)out;lass  v.  pal,  and  rendering  the  bond  valid  in  law. 
Spears,  2  N.  &  McC  207.  [The  New  Milliken  v.  Coombs,  1  Grcenl.  343.  And 
York  statute  seems  to  require  a  contract  see  Ulen  v.  Kittredge,  7  Mass.  233. 

for  the  sale  of  goods  above  the  value  of  »  Emmerson   i'.  "lleelis,  2   Taunt.  38; 

fifty  dollars  to  be  signed  by  both  parties.  White  v.  Procter,  4  Taunt.  209  ;  Long  on 

Dykers  w.  Townsend,  24  N.  Y.  Ct.  App.  Sales,   p.    38    (Hand's    ed.)  ;    Story   on 

67.    But  theverbal  directions  of  the  party,  Agency,   §   27,   and   cases   there   cited; 

8<>nt  by  telcgrai)h,acceptingajiroposition,  Cleaves  v.  Foss,  4  Greenl.  1  ;  Roberts  on 

will  amount  to  signing  within  the  statute.  Frauds,  pp.   113,  114,  n.  (56);  2  Stark. 

Dunning  v.  Roberts,  35  Barb.  463.]  Evid.  352  (0th  Am.  ed.)  ;  Davis  v.  Rob- 

2  Story  on  Agency,  §  50 ;  Coles  v.  Tre-  ertson,  1  Rep.  Const.  C.  71 ;  Adams  v.  Mc- 
cotbick,  0  Ves.  250;  Clinan  v.  Cooke,  1  Millan,  7  Port.  73;  4  Cruise's  Dig.  tit. 
Sch.  &  Lef.  22;  Roberts  on  Frauds,  p.  32,  c.  3,  §  7,  n.  (Greenloaf's  ed.)  [2d  ed. 
113,  n.  (54)  [Browne  on  Stat,  of  Frauds,  (185G)  vol.  ii.  p.  340  ;  Browne  on  Stat,  of 
§  355-3G6|.     If  an  agent,  having  only  a  Frauds,  §§  347,  309]. 

verbal  authority,  should  execute  a  bond  *  Cook    i*.    Stearns,    11     Mass.     533 

in  the  name  of  his  principal,  and  after-     [Browne   on    Stat,   of   Frauds,  §§  227- 
wards  he  be  regularly  constituted  by  letter     262J. 


CHAP.  XIV.]  STATUTE   OF  FRAUDS.  315 

individual  corporators,  tlie  shares  of  the  latter  in  the  stock  of  the 
corporation  are  deemed  personal  estate.^ 

§  271.  Same  subject.  The  main  difficulties  under  this  head  have 
arisen  in  the  aj^plication  of  the  principle  to  cases  where  the  sub- 
ject of  the  contract  is  trees,  growing  crops,  or  other  things  an- 
nexed to  the  freehold.  It  .is  well  settled  that  a  contract  for  the 
sale  oi fruits  of  the  earth,  ripe,  but  not  yet  gathered,  is  not  a  con- 
tract for  any  interest  in  lands,  and  so  not  within  the  Statute  of 
Frauds,  though  the  vendee  is  to  enter  and  gather  them.^  And 
subsequently  it  has  been  held,  that  a  contract  for  the  sale  of  a  crop 
of  potatoes  was  essentially  the  same,  whether  they  were  covered 
with  earth  in  a  field,  or  were  stored  in  a  box  ;  in  either  case,  the 
subject-matter  of  the  sale,  namely,  potatoes,  being  but  a  personal 
chattel,  and  so  not  within  the  Statute  of  Frauds.^  The  latter 
cases  confirm  the  doctrine  involved  in  this  decision,  namely,  that 
the  transaction  takes  its  character  of  realty  or  personalty  from 
the  principal  subject-matter  of  the  contract,  and  the  intent  of  the 
parties ;  and  that,  therefore,  a  sale  of  any  growing  produce  of  the 
earth,  reared  by  labor  and  expense,  in  actual  existence  at  the  time 
of  the  contract,  whether  it  be  in  a  state  of  maturity  or  not,  is  not 
to  be  considered  a  sale  of  an  interest  in  or  concerning  land.^  In 
regard  to  things  produced  annually  by  the  labor  of  man,  the 
question  is  sometimes  solved  by  reference  to  the  law  of  emble- 
ments ;  on  the  ground,  that  whatever  will  go  to  the  executor, 
the  tenant  being  dead,  cannot  be  considered  as  an  interest  in 
land.^  But  the  case  seems  also  to  be  covered  by  a  broader  prin- 
ciple of  distinction,  namely,  between  contracts  conferring  an  ex- 
clusive right  to  the  land  for  a  time,  for  the  pui'pose  of  making  a 
profit  of  the  growing  surface,  and  contracts  for  things  annexed  to 
the  freehold,  in  prospect  of  their  immediate  separation;    from 

1  Bligh  V.  Brent,  2  Y.  &  Col.  268,  295,  829.  See  also  Eodwell  v.  Phillips,  9  M. 
296;  Bradley  v.  Holdsworth,  3  M.  &  W.  &  W.  501,  where  it  was  held,  that  an 
422.  agreement  for  the  sale  of  growing  pears 

2  Parker  v.  Staniland,  11  East,  362;  was  an  agreement  for  the  sale  of  an  inter- 
Cutler  V.  Pope,  1  Sliepl.  o37.  est  in   land,  on   the   principle,  that  the 

8  Warwick  ?>.  Bruce,  2  M.  &  S.  205.  fruit  would  not  pass  to  the  executor,  but 

The  contract  was  made  on  the  12th  of  would  descend  to  the  heir.     The  learned 

October,  when  the  crop  was  at  its  matu-  Chief  Baron  distinguished  this  case  from 

rity;  and  it  would  seem  tiiat  the  potatoes  Smith  v.  Surman,  9  B.  &  C.  501,  the  lat- 

were   forthwith   to   be    digged  and    re-  ter  being  the  case  of  a  sale  of  growing 

moved.  timber  by  tlie  foot,  and  so  treated  b;j  the 

^  Evans  v.  Roberts,  5  B.  &  C.  829;  joart/es  as  if  it  had  been  actually  felled, — • 

Jones  V.  Flint,  10  Ad.  &  El.  753.  a  distinction  which  confirms  the  view  sub 

*  See    observations    of    the    learned  sequently  taken  in  the  text, 
judges,  iu  Evans  v.  Roberts,  5  B.  &  C. 


316 


LAW   OF  EVIDENCE. 


[PAET  n. 


which  it  seems  to  result,  that  where  timber,  or  other  produce  of 
the  land,  or  any  other  thing  annexed  to  the  freehold,  is  specifi- 
cally sold,  whether  it  is  to  be  severed  from  the  soil  by  the  vendor, 
or  to  be  taken  by  the  vendee,  under  a  special  license  to  enter  for 
that  purpose,  it  is  still  in  the  contemplation  of  the  parties,  evi- 
dently and  substantially  a  sale  of  goods  only,  and  so  is  not  within 
the  statute.^ 

§  272.  Devises  of  lands  and  tenements.  Devises  of  lands  and  tene- 


1  Roberts  on  Frauds,  p.  126 ;  4  Kent, 
Comm.  450,  451;  Long  on  Sales  (by 
Rand),  pp.  76-81,  and  cases  there  cited  ; 
Cliitty  on  Contracts,  p.  241  {2d  ed.)  ; 
Bank  of  Lansingburg  v.  Crary,  1  Barb. 
642.  On  this  subject  neither  the  English 
nor  the  American  decisions  are  quite  uni- 
form ;  but  the  weight  of  authority  is  be- 
lieved to  be  as  stated  in  the  text,  though 
it  is  true  of  the  former,  as  Ld.  Abinger 
remarked  in  Rodwell  v.  Phillips,  9  M. 
&  W.  505,  that  "no  general  rule  is  laid 
down  in  any  one  of  them,  that  is  not  con- 
tradicted by  some  others."  See  also 
Poulter  V.  Killingbeck,  1  B.  &  P.  398 ; 
Parker  i'.  Staniland,  11  East,  3G2,  distin- 
guishing and  qualifying  Crosby  v.  Wads- 
worth,  6  East,  611  ;  Smith  v.  Surman,  9 
B.  &  C.  561  ;  Watts  v.  Friend,  10  B.  &  C. 
446.  The  distinction  taken  in  Bostwickt'. 
Leach,  3  Day,  476,484,  is  this,  that  when 
there  is  a  sale  of  property,  which  would 
pass  by  a  deed  of  land,  as  such,  without 
any  other  description,  if  it  can  be  sepa- 
rated from  the  freehold,  and  by  the  con- 
tract is  to  be  separated,  such  contract  is 
not  within  the  statute.  See,  accordingly, 
Wliipple  V.  Foot,  2  Johns.  418,  422 ;  Frear 
V.  Hardcnbergh,5  Johns.  276;  Stewart  v. 
Doughty,  9  Johns.  108,  112;  Austin  v. 
Sawyer,  9  Cowen,  39  ;  Erskine  v.  Plum- 
mer,  7  Greenl.  447 ;  Bishop  v.  Doty,  1 
Vt.  .38 ;  Miller  v.  Baker,  1  Met.  27 ; 
Whitmarsh  v.  Walker,  Id.  313;  Claflin  v. 
Carpenter,  4  Met.  586.  Mr.  Rand,  who 
lias  treated  this  subject,  as  well  as  all 
others  on  which  he  has  written,  with 
great  learning  and  acumen,  would  recon- 
cile the  English  authorities,  by  distin- 
guishing between  tiiose  cases  in  which 
the  subject  of  the  contract,  being  part  of 
the  inheritance,  is  to  be  severed  and  de- 
livered by  tlie  vendor,  as  a  chattel,  and 
those  in  which  a  right  of  entry  by  the 
vendee  to  cut  and  take  it  is  bargained  for. 
"  The  authorities,"  says  he,  "all  agree  in 
this,  that  a  bargain  for  trees,  grass,  crops, 
or  any  such  like  tiling,  when  severed 
from  the  soil,  which  are  growing,  at  the 
time  of  the  contract,  upon  the  soil,  but  to 


be  severed  and  delivered  by  the  vendor, 
as  chattels,  separate  from  any  interest  in 
the  soil,  is  a  contract  for  the  sale  of  goods, 
wares,  or  merchandise,  within  the  mean- 
ing of  the  seventeenth  section  of  the  Stat- 
ute of  Frauds.  (Smith  v.  Surman,  9  B. 
&,  C.  561 ;  Evans  v.  Roberts,  5  B.  &  C. 
836  ;  AVatts  i'.  Friend,  16  B.  &  C.  446  ; 
Parker  v.  Staniland,  11  East,  362;  War- 
wick V.  Bruce,  2  M.  &  S.  205.)  So, 
where  the  subject-matter  of  the  bargain  is 
fnictus  industriales,  such  as  corn,  garden- 
roots,  and  such  like  things,  which  are  em- 
blements, and  which  have  already  grown 
to  maturity,  and  are  to  be  taken  immedi- 
ately, and  no  right  of  entry  forms  abso- 
lutely part  of  the  contract,  but  a  mere 
license  is  given  to  the  vendee  to  enter  and 
take  them,  it  will  fall  within  the  operation 
of  the  same  section  of  the  statute.  ( War- 
wick V.  Bruce,  2  M.  &  S.  205  ;  Parker  v. 
Staniland,  11  East,  362;  Park,  B.,  Car 
rington  v.  Roots,  2  M.  &  W.  256  ;  Baj-ley, 
B.,  Shelton  v.  Livius,  2  Tyrw.  427,  429; 
Bayley,  J.,  Evans  v.  Roberts,  5  B.  &  C. 
831  ;  Scorell  v.  Boxall,  1  Y.  &  J.  398 ; 
Mayfield  v.  Wadsley,  3  B.  &  C.  357.) 
But  where  the  subject-matter  of  the  con- 
tract constitutes  a  part  of  the  inheritance, 
and  is  not  to  be  severed  and  delivered  by 
the  vendor  as  a  chattel,  but  a  riglit  of 
entry  to  cut  and  take  it  is  bargained  for, 
or  where  it  is  emblements  growing,  and 
a  right  in  the  soil  to  grow  and  bring  them 
to  maturity,  and  to  enter  an<l  take  them, 
that  makes  part  of  the  bargain,  the  case 
will  fall  within  the  fourth  section  of  the 
Statute  of  Frauds.  (Carrington  r.  Roots, 
2  M.  &  W.  257;  Shelton  r.  Livius,  2 
Tyrw.  429  ;  Scorell  ;;.  Boxall,  1  Y.  &  J. 
398  ;  Earl  of  Falmouth  v.  Thomas,  1  Cr. 
&  M.  89  ;  Teal  v.  Auty,  2  B  &  Bing.  99  ; 
Emmerson  v.  Heelis,  2  Taunt.  38  ;  Wad- 
dington  v.  Bristow,  2  B.  &  P.  452;  Cros- 
by V.  Wadsworth,  6  East,  602.)"  See 
Long  on  Sales  (by  Rand),  pp.  80,  81. 
But  the  latter  English  and  the  American 
authorities  do  not  seem  to  recognize  such 
distinction.  [See  also  Browne  on  Stat 
of  Frauds,  §§235-257.] 


CHAP.  XIV.]  STATUTE  OF  FBATJDS.  317 

ments  are  also  required  to  be  in  writing,  signed  by  the  testator, 
and  attested  by  credible,  that  is,  by  competent  witnesses.  By  the 
statutes  32  Hen.  VIII.  c.  1,  and  34  &  35  Hen.  VIII.  c.  5,  devises 
were  merely  required  to  be  in  writing.  The  Statute  of  Frauds, 
29  Car.  II.  c.  3,  required  the  attestation  of  "three  or  four  credi- 
ble witnesses  ;  "  but  the  statute  1  Vict.  c.  26,  has  reduced  the 
number  of  witnesses  to  two.  The  provisions  of  the  Statute  of 
Frauds  on  this  subject  have  been  adopted  in  most  of  the  United 
States.^  .  It  requires  that  the  witnesses  should  attest  and  subscribe 
the  will  in  the  testator's  presence.  The  attestation  of  marksmen 
is  sufficient ;  and,  if  they  are  dead,  the  attestation  may  be  proved 
by  evidence,  that  they  lived  near  the  testator,  that  no  others  of 
the  same  name  resided  in  the  neighborhood,  and  that  they  were 
illiterate  persons.^  One  object  of  this  provision  is,  to  prevent  the 
substitution  of  another  instrument  for  the  genuine  will.  It  is 
therefore  held,  that  to  be  present,  within  the  meaning  of  the  stat- 
ute, though  the  testator  need  not  be  in  the  same  room,  yet  he 
must  be  near  enough  to  see  and  identify  the  instrument,  if  he  is 
so  disposed,  though  in  truth  he  does  not  attempt  to  do  so  ;  and 
that  he  must  have  mental  knowledge  and  consciousness  of  the 
fact.^  If  he  be  in  a  state  of  insensibility  at  the  moment  of  attesta- 
tion, it  is  void.*  Being  in  the  same  room  is  held  prima  facie  evi- 
dence of  an  attestation  in  his  presence,  as  an  attestation,  not  made 
in  the  same  room,  is  prima  facie  not  an  attestation  in  his  pres- 
ence.^   It  is  not  necessary,  under  the  Statute  of  Frauds,  that  the 

1  In  New  Hampshire  alone  the  will  is  notes    [2d    ed.    (1857)    pp.  47-80,    and 

required  to  be  sealed.     Tliree  witnesses  notes] ;  1  Jarman  on  Wills,  c.  6,  by  Per 

are  necessary  to  a  valid  will  in  Vermont,  kins. 

New    Hampshire,   Maine,    Massachusetts,  ^  Doe  v.   Caperton,  9    C.    &   P.    112; 

Rhode    Island,    Connecticut,   New    Jersey,  Jackson  v.   Van    Dusen,  6  Johns.   144; 

Maryland,  South   Carolina,    Georgia,   Flor-  Doe  v.  Davis,  11  Jur.  182. 
ida,  Alabama,  a.nd  Mississippi.     Two  wit-  3  Shires  v.  Glascock,  2  Salk.  688  (by 

nesses  only  are  requisite  in  New  York,  Evans),  and  cases  cited  in  notes  ;  4  Kent, 

Delaware,  Virginia,  Ohio,  Illinois,  Indiana,  Coram.  515,  516 ;  Casson  v.  Dade,  1  Bro. 

Missouri,  Tennessee,  North  Carolina,  Micki-  Ch.    99 ;    Doe   v.  Manifold,  1    M.    &    S. 

pan,  Wisconsin,  Arkansas,  and  Kentucky.  294;  Tod  v.  E.  of  Winchelsea,  1  M.  &  M. 

In  some  of  the  States,  the  provision  as  to  12  ;  2  C.  &  P.  488 ;  Hill  v.  Barge,  12  Ala. 

attestation  is  more  special.     In  Pennsyl-  687. 

vania,  a  devise  is  good,  if  properly  signed,  *  Right  v.  Price,  Doug.  241. 
thougli  it  is  not  subscribed  by  any  attest-  5  NgJi  y.  Neil,  1  Leigh,  6, 10-21,  where 
ing  witness,  provided  it  can  be  proved  by  the  cases  on  this  subject  are  ably  re- 
two  or  more  competent  witnesses;  and  if  viewed  by  Carr,  J.  If  the  two  rooms 
it  be  attested  by  witnesses,  it  may  still  be  have  a  communication  by  folding-doors,  it 
proved  by  others.  4  Kent,  Comm.  514.  is  still  to  be  ascertained  whether,  in  fact. 
See  post,  vol.  ii.  tit.  Wills  [7th  ed.  the  testator  could  have  seen  the  witnesses 
(1858)  §§  673-678,  and  notes].  See  fur-  in  the  act  of  attestation.  In  the  Goods  of 
ther,  as  to  the  execution  of  wills,  6  Colman,  3  Curt.  118. 
Cruise's  Dig.   tit.   38,  c.   5,  Greenleaf's 


318 


LAW   OF  EVIDENCE. 


[PAET  n. 


witnesses  should  attest  in  the  presence  of  each  other,  nor  that 
they  should  all  attest  at  the  same  time  ;  ^  nor  is  it  requisite  that 
they  should  actually  have  seen  the  testator  sign,  or  known  what 
the  paper  was,  provided  they  subscribed  the  instrument  in  his 
presence  and  at  his  request.^  Neither  has  it  been  considered 
necessary,  under  tliis  statute,  that  the  testator  should  siihscrihe 
the  instrument,  it  being  deemed  sufficient  that  it  be  signed  by 
liim  in  any  part,  with  his  own  name  or  marh^  provided  it  appear 
to  have  been  done  animo  perficiendi,  and  to  have  been  regarded 
by  him  as  completely  executed.'^  Thus,  where  the  will  was  signed 
in  the  margin  only,  or  where,  being  written  hj  the  testator  him- 
self, his  name  was  written  only  in  the  beginning  of  the  will,  I, 
A.  B.,  &c.,  this  was  held  a  sufficient  signing.*  But  where  it  ap- 
peared that  the  testator  intended  to  sign  each  several  sheet  of  the 
will,  but  signed  only  two  of  them,  being  unable,  from  extreme 
weakness,  to  sign  the  others,  it  was  held  incomplete.^ 


1  Cook  V.  Parsons,  Prec.  in  Chan.  184 ; 
Jones  I'.  Lake,  2  Atk.  177,  in  n. ;  Grayson 
V.  Atkin,  2  Ves.  455 ;  Dewey  v.  Dewey, 
1  Met.  349 ;  1  Williams  on  Executors 
(by  Troubat),  p.  46,  n.  (2).  The  stat- 
ute of  1  Vict.  c.  26,  §  9,  has  altered  the 
law  in  this  respect,  by  enacting  tliat  no 
will  shall  be  valid  unless  it  be  in  writing, 
signed  by  the  testator  in  the  presence  of 
two  witnesses  at  one  time.  See  Moore  v. 
King,  3  Curt.  243  ;  In  the  Goods  of  Sim- 
monds.  Id.  79. 

2  White  V.  Trustees  of  the  British  Mu- 
seum, 6  Bing.  310 ;  Wright  v.  Wright,  7 
Bing.  457  ;  Dewey  v.  Dewey,  1  Met.  349  ; 
Johnson  v.  Johnson,  1  C.  &  M.  140.  In 
these  cases,  the  court  certainly  seem  to 
regard  tlie  knowledge  of  tlie  witnesses, 
that  the  instrument  was  a  will,  as  a  mat- 
ter of  no  importance  ;  since  in  the  first 
two  cases  only  one  of  the  witnesses  knew 
what  the  paper  was.  But  it  deserves  to 
be  considered  whether,  in  such  case,  the 
attention  of  the  witness  would  probably 
be  drawn  to  the  state  of  the  testator's 
mind,  in  regard  to  his  sanity  ;  for  if  not, 
one  object  of  the  statute  would  be  defeat- 
ed. See  Rutherford  v.  Rutherford,  1 
Den.  33  ;  Rrinkerlinff  v.  Remsen,  8  Paige, 
488:  2G  Wend.  325;  Chaffee  v.  Raptist, 
M.  C,  10  Paige,  85  ;  1  Jarm.  on  Wills  (by 
Perkins),  p.  114  ;  6  Cruise's  Dig",  tit.  38, 
c.  5,  §  14,  n.  (Grcenleaf's  ed.)  |2d  ed. 
1857,  vol.  iii.  p.  53,  and  n.].  See  lurther, 
as   to  proof   by   subscribing   witnesses, 

^  Tliat  the  party's  mark  or  inillals  is  a 
BuflBcient  signature  to  any  instrument,  be- 


ing placed  there  witli  intent  to  bind  him- 
self, in  all  cases  not  otherwise  regulated 
by  statute,  see  Baker  v.  Dening,  8  Ad.  & 
El.  94;  Jackson  v.  Van  Dusen,  5  Johns. 
144 ;  Palmer  v.  Stephens,  1  Den.  471,  and 
the  cases  cited  in  6  Cruise's  Dig.  tit.  38, 
c.  5,  §§  7,  19,  notes  (Greenleaf's  ed.) 
[2d  ed.  (1857)  vol.  iii.  pp.  50-56] ;  post, 
vol.  ii.  §  677. 

*  Lemaine  v.  Stanley,  3  Lev.  1  ;  Mor- 
rison V.  Tumour,  18  Ves.  183.  But  this 
also  is  now  clianged  by  the  statute  1  Vict. 
c.  26,  §  9,  by  which  no  will  is  valid  unless 
it  be  signed  at  the  foot  or  end  thereof,  by 
the  testator,  or  by  some  other  person,  in 
his  presence  and  by  his  direction;  as  well 
as  attested  by  two  witnesses,  subscribing 
their  names  in  his  presence.  See  In  the 
Goods  of  Carver,  3  Curt.  29. 

5  Riglit  V.  Price,  Doug.  241.  The  Stat- 
tite  of  Frauds,  which  has  been  generally 
followed  in  the  United  States,  admitted 
exceptions  in  favor  of  nuncupative  or 
verbal  wills,  made  under  certain  circum- 
stances therein  mentioned,  as  well  as  in 
favor  of  parol  testamentary  dispositions 
of  personalty,  by  soldiers  in  actual  ser- 
vice, and  by  mariners  at  sea;  any  further 
notice  of  which  would  be  foreign  from 
the  plan  of  this  treatise.  The  latter  ex- 
ceptions still  exist  in  England;  but  nun- 
cupative wills  seem  to  be  abolished  there, 
by  the  general  terms  of  the  statute  of  1 
Vict.  c.  26,  §  9,  before  cited.  The  com- 
mon law,  which  allows  a  bequest  of  per- 
sonal estate  by  parol,  without  writing, 
has  been  altered  by  statute  in  most,  ii 
not  all,  of  the  United  States ;  the  course 


CHAP.  XIV.]  STATUTE  OF  FRAUDS.  819 

§  273.  Revocation  of  wHis.  By  the  Statute  of  Frauds,  the  revo- 
cation of  a  zvill,  by  the  direct  act  of  the  testator,  must  be  proved 
by  some  subsequent  will  or  codicil,  inconsistent  with  the  former 
or  by  some  other  writing,  declaring  the  same,  and  signed  in  the 
presence  of  three  witnesses,  or  by  burning,  tearing,  cancelling,  or 
obliterating  the  same  by  the  testator,  or  in  his  presence  and  by 
his  direction  and  consent.^  It  is  observable  that  this  part  of  the 
statute  only  requires  that  the  instrument  of  revocation,  if  not  a 
will  or  codicil,  be  signed  by  the  testator  in  presence  of  the  wit- 
nesses, but  it  does  not,  as  in  the  execution  of  a  will,  require  that 
the  witnesses  should  sign  in  his  presence.  In  regard  to  the  other 
acts  of  revocation  here  mentioned,  they  operate  by  one  common 
principle  ;  namely,  the  intent  of  the  testator.  Revocation  is  an 
act  of  the  mind,  demonstrated  by  some  outward  and  visible  sign  or 
symbol  of  revocation  ;  ^  and  the  words  of  the  statute  are  satisfied 
by  any  act  of  spoliation,  reprobation,  or  destruction,  deliberately 
done  upon  the  instrument,  animo  revocanclL^  The  declarations 
of  the  testator,  accompanying  the  act,  are  of  course  admissible 
in  evidence  as  explanatory  of  his  intention.*  Accordingly,  where 
the  testator  rumpled  up  his  will  and  threw  it  into  the  fire  with 
intent  to  destroy  it,  though  it  was  saved  entire  without  his 
knowledge,  this  was  held  to  be  a  revocation.^  So,  where  he  tore 
off  a  superfluous  seal.^  But  where,  being  angry  with  the  devi- 
see, he  began  to  tear  his  will,  but  being  afterwards  pacified,  he 
fitted  the  pieces  carefully  together,  saying  he  was  glad  it  was  no 
worse,  this  was  held  to  be  no  revocation.'' 

§  274.  Apprenticeship.  Documentary  evidence  is  also  required 
in  proof  of  the  cotitract  of  apprenticeship ;  there  being  no  legal 
binding,  to  give  the  master  coercive  power  over  the  person  of  the 

of  legislation  having  tended  strongly  to  (by  Greenleaf )  tit.  38,  c.  6,  §§  18,  19,  29, 

the  abolition  of  all  distinctions  between  notes  [2d  ed.  (1857)  vol.  iii.  p.  81  et  seq. ; 

the  requisites  for  the  testamentary  dispo-  2  Greenl.  Evid.  (7th  ed.)  §§   680-687]; 

sition  of  real  and  of  personal  property.  1  Jarman  on  Wills  (by  Perkins),  c.  7,  §  2, 

See  4  Kent,  Comm.  516-520 ;  Lovelass  notes. 

on  Wills,  pp.  315-319;    1    Williams   on  2  Bibb  w.  Thomas,  2  W.  Bl.  1043. 

Executors  (by  Troubat),  pp.  46-48,  notes ;  3  Burtenshaw  v.  Gilbert,  Cowp.  49,  52; 

1  Jarman  on  Wills  (by  Perkins),  p.  [90J  Burns  v.  Burns,  4  S.  &  11.  567;  6  Cruise's 

132,  n.;  G  Cruise's  Dig.  (by  Greenleaf),  Dig.   (by  Greenleaf)  tit.  38,  c.  6,  §  54 ; 

tit.  38,  c.  5,  §  14,  n.  [2d  ed.  (1857)  vol.  iii.  Johnson  v.  Brailsford,  2Nott  &  McC.  272; 

p.  53,  and  note.     See   also  post,  vol.  ii.  Winsor  v.  Pratt,  2  B.  &  B.  650;  Lovelass 

§  674  et  s<'(j.].  on  Wills,  pp.  346-350;  Card  v.  Grinraan, 

1  Stat.  29  Car.  II.  c.  3,  §  6.     The  stat-  5  Conn.  168 ;  4  Kent,  Comm.  531,  532. 

Tite  of  1  Vict.  c.  26,  §  20,  mentions  "burn-  *  Dan  v.  Brown,  4  Co  wen,  490. 

ing,  tearing,  or  otherwise  destroying  the  ^  Bibb  v.  Thomas,  2  W.  Bl.  1043. 

same,"  &c.     And  see  furtlier,  as  to  the  ®  Avery  v.  Pixley,  4  I\Iass.  462. 

evidence  of  revocation,  6  Cruise's  Dig.  "^  Doe  v.  Perkes,  3  B.  &  Aid.  489. 


320  LATV   OF  EVIDENCE.  [PAUT  H. 

apprentice,  unless  it  be  by  indentures,  duly  executed  in  the  forms 
prescribed  by  the  various  statutes  on  this  subject.  The  general 
features  of  the  English  statutes  of  apprenticeship,  so  far  as  the 
mode  of  binding  is  Qoncerned,  will  be  found  in  those  of  most  of 
the  United  States.  There  are  various  other  cases,  in  which  a 
deed,  or  other  documentary  evidence,  is  required  by  statutes,  a 
particular  enumeration  of  which  would  be  foreign  from  the  plan 
of  tliis  treatise.^ 

1  In  several  of  the  United  States,  two  nesses.     See  supra,  §  260,  n. ;  4  Cruise's 

subscribing  witnesses  are   necessary  to  Dig.  tit.  32,  c.  2,  §  77,  n.  (Greenleaf's  ed.) 

tlie  execution  of  a  deed  of  conveyance  of  [2d  ed.   (1856)  vol.  ii.  p.  341];  4  Kent, 

lands   to   entitle   it   to   registration;    in  Comm.   457.      See  also  post,  vol.  ii.  tit. 

others,  but  one.   In  some  others,  the  tes-  Wills,    passim,    where    the     subject    of 

timony   of    two   witnesses   is   requisite,  Wills  is  more  amply  treated, 
when  the  deed  is  to  be  proved  by  wit- 


CHAP.  XV.]       ADMISSIBILITY   OF   PAROL  EVIDENCB.  321 


CHAPTER  XV. 

OF    THE  ADMISSIBILITY  OF   PAEOL   OR   VERBAL    EVIDENCE   TO 
AFFECT   THAT   WHICH  IS   WRITTEN.^ 

§  275.  "Written  evidence.  By  written  evidence^  in  this  place,  is 
meant  not  every  thing  which  is  in  writing,  but  that  only  which 
is  of  a  documentary  and  more  solemn  nature,  containing  the  terms 
of  a  contract  between  the  parties,  and  designed  to  be  the  reposi- 
tory and  evidence  of  their  final  intentions.  "  Fiunt  enim  de  his 
[contractibus]  scripturse,  ut,  quod  actum  est,  per  eas  facilius  pro- 
bari  poterit."  ^  When  parties  have  deliberately  put  their  engage- 
ments into  writing,  in  such  terms  as  import  a  legal  obligation, 
without  any  uncertainty  as  to  the  object  br  extent  of  such  engage- 
ment, it  is  conclusively  presumed  that  the  whole  engagement  of 
the  parties,  and  the  extent  and  manner  of  their  undertaking,  was 
reduced  to  writing ;  and  all  oral  testimony  of  a  previous  colloquium 
between  the  parties,  or  of  conversation  or  declarations  at  the  time 
when  it  was  completed,  or  afterwards,  as  it  would  tend  in  many 
instances  to  substitute  a  new  and  different  contract  for  the  one 
which  was  really  agreed  upon,  to  the  prejudice,  possibly,  of  one  of 
the  parties,  is  rejected.^     In  other  words,  as  the  rule  is  now  more 

1  The  subject  of  this  chapter  is  ably  oral  testimony.  "Wilcox  v.  Emerson,  10 
discussed  in  Spence  on  the  Equitable  R.  I.  270.  And  see  yw.s/,  §  276,  n.]. 
Jurisdiction  of  Chancery,  vol.  i.  ])p.  553-  ^  Stackpole  v.  Arnold,  11  Mass.  30,  31, 
875,  and  in  1  Smith's  Lead.  Cas.  pp.  410-  per  Parker,  J. ;  Preston  v.  Merceau,  2  W. 
418  [305-310],  with  Hare  &  Wallace's  Bl.  1249 ;  Coker  v.  Guy,  2  B.  &  P.  565, 
notes.  669;    Bogert   v.    Cauman,   Anthon,   70; 

2  Dig.  lib.  20,  tit.  1,  1.4;  Id.  lib.  22,  Bayard  v.  Malcolm,  1  Johns.  467,  per 
tit.  4,  1.  4  [State  v.  Clemons,  9  Iowa,  534.  Kent,  C.  J. ;  Rich  r.  Jackson,  4  Bro.  Cli. 
Nor  to  show  a  mistake  in  computing  the  519,  per  Ld.  Thurlow  ;  Sinclair  i-.  Ste- 
amount  of  tlic  recognizance.  Morton  i'.  venson,  1  C.  «&  P.  582,  per  Best,  C.  J.  ; 
Chandler,  7  Maine,  44.  And,  generally,  McLolhin  ?-.  The  Cumberland  Bank,  11 
records  required  to  be  kept  by  law  Shepl.  5G6.  The  general  rule  of  the 
are  unimpeachable  by  parol  testimony'.  Scotch  law  is  to  the  same  effect,  namely, 
Mayhew  v.  Gay  Head,  13  Allen  (Mass.),  thaf'writing  cannot  be  cutdown  or  taken 
129;  Hunneman  v.  Fire  District,  37  Vt.  away,  by  the  testimony  of  witnesses." 
40.  In  a  suit  on  a  recognizance,  the  mag-  Tait  on  Evid.  pp.  326,  327.  And  this,  in 
istrate  who  made  record  of  the  same  can-  other  language,  is  the  rule  of  the  Roman 
not  be  permitted  to  testify  that  it  was  civil  law,  —  Contra  scriptum  testimo- 
not  taken  by  him.  McMickenr.  Com.,  58  nium,  non  scriptum  testimonium  non 
Penn.  St.  213.     Nor  can  a  sheriff's  return  fertur.     Cod.  lib.  4,  tit.  20,  1.  1 

on  levy  of  execution  be  supplemented  by 
VOL.  1.  21 


322 


LAW   OF  EVIDENCE. 


[part  n. 


briefly  expressed,  "  parol  contemporaneous  evidence  is  inadmissi- 
ble to  contradict  or  vary  the  terms  of  a  valid  written  instrument."  ^ 

§  276.  Origin  of  the  rule.  This  rule  "  was  introduced  in  early 
times,  when  the  most  frequent  mode  of  ascertaining  a  party  to  a 
contract  was  by  his  seal  affixed  to  the  instrument ;  and  it  has 
been  continued  in  force,  since  the  vast  multiplication  of  Avritten 
contracts,  in  consequence  of  the  increased  business  and  commeice 
of  the  world.  It  is  not  because  a  seal  is  put  to  the  contract,  that 
it  shall  not  be  explained  away,  varied,  or  rendered  ineffectual ; 
but  because  the  contract  itself  is  plainly  and  intelligibly  stated, 
in  the  language  of  the  parties,  and  is  the  best  possible  evidence 
of  the  intent  and  meaning  of  those  who  are  bound  by  the  con- 
tract, and  of  those  who  are  to  receive  the  benefit  of  it."  "  The 
rule  of  excluding  oral  testimony  has  heretofore  been  applied  gen- 
erally, if  not  Universally,  to  simple  contracts  in  writing,  to  the 
same  extent  and  with  the  same  exceptions  as  to  specialties  or 
contracts  under  seal."  ^ 

§  277.  Applicable  to  language  only.  It  is  to  be  observed,  that 
the  rule  is  directed  only  against  the  admission  of  any  other  evi- 
dence of  the  language  employed  by  the  parties  in  making  the 
contract,  than  that  which  is  furnished  by  the  writing  itself.  The 
writing,  it  is  true,  may  be  read  by  the  light  of  surrounding  cir- 
cumstances, in  order  more  perfectly  to  understand  the  intent  and 


1  Phil.  &  Am.  on  Evid.  p.  753 ;  2  Phil. 
Evid.  350:  2  Starlc.  Evid.  544,  548; 
Adams  v.  Wordley,  1  M.  &  W.  379,  380, 
per  Parke,  B. ;  Boorinan  v.  Jiihnston,  12 
Wend.  573.  [Tims  tiie  entry  in  a  court 
of  record  into  wliicli  a  recognizance  is 
returnable,  that  the  principal  made  do- 
fault,  cannot  be  contradicted  by  parol 
evidence,  on  scire  fari<is,  aj^ainst  the  bail. 
Commonwealth  i".  Slocnni,  14  Gray,  31)5. 
Nor  can  an  official  entry  on  a  record, 
void  for  uncertainty,  be  explained  by 
extrinsic  evidence.  Porter  v.  liyrne,  10 
Ind.  14(1.] 

-  I'er  Parker,  J.,  in  Stackpole  v.  Ar- 
nold, 11  Mass.  31.  See  also  Woolam  v. 
IIearn,7  Vcs. 218,  per  Sir  William  Grant; 
Hunt  V.  Adams,  7  Mass.  5'J2,  per  Sew- 
all,  J.  [Parol  evidence  has  been  held  to 
be  admissible  to  show  that  there  was  no 
acknowledgment  of  a  deed,  as  the  cer- 
tificate sets  forth;  as,  for  instance,  by 
proof  liy  the  grantor  of  an  alibi.  Smith 
V.  Ward,  2  Root  (Conn),  374.  See  also 
Edgerton  v.  Jones,  10  Minn.  427.  Ilut, 
generally,  a  certificate   of  acknowledg- 


ment is  conclusive  by  statute.  Green  v. 
Godfrey,  44  JNIaine,  25.  Nor  is  it  permis- 
sible to  show  that  the  person  certifying 
is  qualified,  that  fact  not  appearing  on 
the  certificate,  l^nnor  v.  Tliompson,  46 
111.  214  ;  Johnston  v.  Haines,  2  Ohio,  55. 
When  written  instructions  are  given  by 
one  person  to  another,  with  respect  to 
the  transaction  of  certain  business  of  the 
former,  and  such  instructions  are  re- 
ceived and  acted  upon  by  tlie  latter, 
parol  evidence  is  not  admissible  to  con- 
trol them,  whether  considered  as  a  con- 
tract in  writing  between  the  pErties,  or 
as  a  direction  from  a  principal  to  his 
agent.  Uichardson  v.  Cliurclnll,  5  Cush. 
(^lass.)  425.  Acceptances  and  indorse- 
ments in  blank,  written  on  bills  of  ex- 
change and  promissory  notes,  constitute 
well-defineil  contracts,  ami  parol  evi- 
dence cannot  be  admitted  to  explain 
them.  Mever  r.  Reanlslev,  30  N.  J.  23li ; 
Wright  r.  "Morse,  !»  Gray  (Mass.) ,  337  ; 
Norton  <•.  Coons,  0  N.  Y.  33.  But  see  con- 
tra, Downer  '•.  Chescliornugh,  3tj  (/onn. 
39;  Koss  V.  Espy,  60  Penn   St.  394.1 


CHAP.  XV.]       ADMISSIBILITY   OF  PAEOL  EVIDENCE.  323 

meaning  of  the  parties  ;  but,  as  they  have  constituted  the  writ- 
ing to  be  the  onl}"-  outward  and  visible  expression  of  tlieir  mean- 
ing, no  other  words  are  to  be  added  to  it,  or  substituted  in  its 
stead.  The  duty  of  the  court  in  such  cases  is  to  ascertain,  not 
what  the  parties  may  have  secretly  intended,  as  contradistin- 
guished from  what  their  words  express,  but  what  is  the  meaning 
of  words  they  have  used.^  It  is  merely  a  duty  of  interpretation  ; 
that  is,  to  find  out  the  true  sense  of  the  written  words,  as  the 
parties  used  them ;  and  of  construction,  that  is,  when  the  true 
sense  is  ascertained,  to  subject  the  instrument,  in  its  operation,  to 
the  established  rules  of  law.^  And  where  the  language  of  an  in- 
strument has  a  settled  legal  construction,  parol  evidence  is  not 
admissible  to  contradict  that  construction.  Thus,  where  no  time 
is  expressly  limited  for  the  payment  of  the  money  mentioned  in  a 
special  contract  in  writing,  the  legal  construction  is,  that  it  is  pay- 
able presently  ;  and  parol  evidence  of  a  contemporaneous  verbal 
agreement,  for  the  payment  at  a  future  day,  is  not  admissible.^ 

§  278.  Words  generally  taken  in  their  ordinary  sense.  The  terms 
of  every  written  instrument  are  to  be  understood  in  their  plain, 
ordinary,  and  popular  sense,  unless  they  have  generally,  in  re- 
spect to  the  subject-matter,  as  by  the  known  usage  of  trade,  or 
the  like,  acquired  a  peculiar  sense,  distinct  from  the  popular 
sense  of  the  same  words ;  or  unless  the  context  evidently  points 
out  that,  in  the  particular  instance,  and  in  order  to  effectuate  the 
immediate  intention  of  the  parties,  it  should  be  understood  in 
some  other  and  peculiar  sense.     But  where  the  instrument  con- 

1  Doe  V.  Gwillim,  5  B.  &  Ad.  122, 129,  by  Lloyd,  p.  198,  n. ;  supra,  §  49  ;  Hutch- 

per  Parke,  J. ;  Doe  v.  Martin,  4  B.  &  Ad.  inson  v.  Bowker,  5  M.  &  W.  585  [Hills  v. 

771,  780,  per   Parke,   J.;    Beaumont   v.-  London  Gas   Co.,  27  L.  J.  (Exch.)  GO]; 

Field,  2  Chitty,  275,  per  Abbott,  C.  J.  and  where  it  is  doubtful  whether  a  cer- 

See  infrn,  §  295.     [And  where  a  written  tain  word  was  used  in  a  sense  different 

instrument  is  lost,  and  parol  evidence  is  from  its  ordinary  acceptation,  it  will  refer 

given  of  its  contents,  its  construction  still  the  question  to  the  jury.      Simpson   v. 

remains  the  duty  of  the  court.     Berwick  Margitson,  35  Leg.  Obs.  172  [Morse  v. 

V.  Horsfall,  4  Com.  B.  n.  s.  450.]  Weymouth,  28  Vt^  824]. 

-  The  subject  of  Interpretation  and  ^  Warren  r.  Wheeler,  8  Met.  97.    Nor 

C!!ons1  ruction  is  ably  treated  by  Professor  is  parol  evidence  admissible  to  prove  how 

Ivieber,  in  his  Legal  and  Political  Herme-  a  written   contract  was   understood   by 

neutics,  c.  1,  §  8,  and  c.  3,  §§  2,  3.     And  either  of  the  parties,  in  an  action  upon 

see  Doct.  &  St.  39,  c.  24.     The  interpre-  it  at  law,  in  the  absence   of  any  fraud, 

tation,  as  well  as  the  construction  of  a  Bigclow    v.    Collamore,    5    Cush.    226 ; 

written  instrument,  is  for  the  court,  and  Harper  v.  Gilbert,  Id.  417.     [Parol  evi- 

not  for  the  jury.     But  other  questions  of  dence  is  not  admissible  to  show  in  wliat 

intent,  in  fact,  are  for  the  jury.     The  sense  the  recorded  vote  of  the  directors 

court,  however,  where  the  meaning   is  of  a  corporation  was   understood  by  a 

doubtful,  will,  in  proper  cases,  receive  director.     Gould  i;.  Norfolk  Lead  Co.,  9 

evidence  in  aid  of  its  judgment.    Story  on  Cush.  338,  343.] 
Agency,  §  63,  n.  (1);  Paley  on  Agency, 


324  I^AW  OF  EVIDENCE.  [PAKT  H. 

sists  partly  of  a  printed  formula,  and  partly  of  written  words,  if 
there  is  any  reasonable  doubt  of  the  meaning  of  the  whole,  the 
written  ivords  are  entitled  to  have  greater  effect  in  the  interpre- 
tation than  those  which  are  printed  ;  they  being  the  immedi- 
ate language  and  terms  selected  by  the  parties  themselves  for 
the  expression  of  their  meaning,  while  the  printed  formula  is 
more  general  in  its  nature,  applying  equally  to  their  case  and 
to  that  of  all  other  contracting  parties,  on  similar  subjects  and 
occasions.^ 

§  279.  Rule  applies  only  to  parties  to  controversy.  The  rule 
under  consideration  is  applied  only  (in  suits')  between  the  parties 
to  the  instrument ;  as  they  alone  are  to  blame  if  the  writing 
contains  what  was  not  intended,  or  omits  that  which  it  should 
have  contained.  It  cannot  affect  third  persons,  who,  if  it  were 
otherwise,  might  be  prejudiced  by  things  recited  in  the  writings, 
contrary  to  the  truth,  through  the  ignorance,  carelessness,  or  fraud 
of  the  parties ;  and  who,  therefore,  ought  not  to  be  precluded  from 
proving  the  truth,  however  contradictory  to  the  written  state- 
ments of  others.^ 

§  280.  Testimony  of  experts  to  aid.  It  is  almost  superfluous  to 
add,  that  the  rule  does  not  exclude  the  testimony  of  experts,  to 
aid  the  court  in  reading  the  instrument.  If  the  characters  are 
difficult  to  be  deciphered,  or  the  language,  whether  technical,  or 
local  and  provincial,  or  altogether  foreign,  is  not  understood  by 
the  court,  the  evidence  of  persons  skilled  in  deciphering  writings, 
or  who  understood  the  language  in  which  the  instrument  is 
written,  or  the  technical  or  local  meaning  of  the  terms  employed, 
is  admissible  to  declare  what  are  the  characters,  or  to  translate 
the  instrument,  or  to  testify  to  the  proper  meaning  of  the  partic- 
ular words.3     Thus  the  words  "  inhabitant,"  ^  "  level,"  ^  ''  thou- 

1  Per  L(l.  Ellcnl)orough,  in  Robertson  ^  Wi^ram  on  tlie  Interpretation  of 
r.  Frciidi,  4  East,  l;^y,  i;]0.  See  Wigram  Wills,  p.  48;  2  Stark.  Eviil.  505,  500; 
on  tlie  Int(rj)rftati()n  of  Will.-*,  pp..l.'),  16,  Birch  v.  Depeystcr,  1  Stark.  1210,  and 
and  cases  there  cited.  Sec  also  Hoorman  cases  tiiere  cited;  infra,  §§  2!)2,  440,  n. ; 
V.  Johnston,  12  Wend.  573;  Taylor  v.  Sheldon  v.  Benliam,'4  Hill  (N.  Y.),  123 
Bripgs,  2  C.  &  P.  525;  Alsager  v.  St.  [Stone  v.  Ihihbard,  7  Cush.  595,  5!»7. 
Katherine's  Dock  Co.,  14  M.  &  W.  790,  "Barrel,"  Miller  v.  Stevens,  100  Mass. 
per  Parke,  B.  518;  "all  faults,"  Whitnev  v.  Boardman, 

2  Supra,  §§  23,  171,  204  ;  1  Poth.  Obi.  118  Mass.  242  ;  "  best  oil,"  Lucas  v.  Bris- 
by  Evan«,  part  4,  c.  2,  art.  3,  n.  |7ij0]  ;    2  tow,  E.  B.  &  E.  907 1. 

Stark.   Evid.  575;  Krider  v.  LalTerty,  1  *  The  King  t-.  Mashiter,  6  Ad.  &  El. 

Whart.  303,  314,  per  Kennedy,  .1.  ;   Hey-  153. 

nnlds  V.  Magness,  2  Iredell,  2G  [Edger'ly  *  Clayton  v.  Grcgson,  5  Ad.  &  El.  302; 

V.  Emerson,  3  Foster,  555.     See  Langdon  s.  c.  4  N.  &  M.  002. 
V.  Langdon,  4  Gray,  18*);  Arthur  v.  Rob- 
erts, 00  Barb.  (N.  Y.)  580]. 


CHAP.  XV.]       ADlVnSSIBILITY   OF   PAROL  EVrOENCE. 


325 


sands,"  ^  "  fur,"  ^  "  freight,"  ^  and  many  others,  have  been 
interpreted,  and  their  peculiar  meaning,  when  used  in  connection 
with  the  subject-matter  of  the  transaction,  has  been  fixed,  by 
parol  evidence  of  the  sense  in  which  they  are  usually  received, 
when  employed  in  cases  similar  to  the  case  at  bar.  And  so  of 
tlie  meaning  of  the  phrase,  "  duly  honored,"  ^  when  applied  to  a 
bill  of  exchange  ;  and  of  the  expression,  "in  the  month  of  Octo- 
ber," ^  when  applied  to  the  time  when  a  vessel  was  to  sail ;  and 
many  others  of  the  like  kind.  If  the  question  arises  from  the 
obscurity  of  the  writing  itself,  it  is  determined  by  the  court 
alone  ;  ^  but  questions  of  custom,  usage,  and  actual  intention  and 
meaning  derived  therefrom,  are  for  the  jury.''  But  where  the 
words  have  a  known  legal  meaning,  such,  for  example,  as  meas- 
ures of  quantity  fixed  by  statute,  parol  evidence,  that  the  parties 
intended  to  use  them  in  a  sense  different  from  the  legal  meaning. 


1  Smith  V.  Wilson,  3  B.  &  Ad.  728. 
The  doctrine  of  the  text  was  more  fully 
expounded  by  Shaw,  C.  J ,  in  Brown  v. 
Brown,  8  Met.  576,  577,  as  follows:  "The 
meaning  of  words,  and  the  grammatical 
construction  of  the  English  language,  so 
far  as  they  are  established  by  the  rules 
and  usages  of  the  language,  are,  prima 
facie,  matter  of  law,  to  be  construed  and 
passed  upon  by  the  court.  But  language 
may  be  ambiguous,  and  used  in  different 
senses ;  or  general  words,  in  particular 
trades  and  branches  of  business,  —  as 
among  merchants,  for  instance,  —  may  be 
used  in  a  new,  peculiar,  or  technical 
sense  ;  and,  therefore,  in  a  few  instances, 
evidence  may  be  received,  from  those 
wlio  are  conversant  with  such  branches 
of  business,  and  such  tecluiical  or  peculiar 
use  of  language,  to  explain  and  illustrate 
it.  One  of  the  strongest  of  these,  per- 
haps, among  the  recent  cases,  is  the  case 
of  Smith  V.  Wilson,  3  Barn.  &  Adolph. 
728,  where  it  was  held,  that,  in  an  action 
on  a  lease  of  an  estate  including  a  rabbit- 
warren,  evidence  of  usage  was  admissible 
to  show  that  the  words,  'thousand  of  rab- 
bits,' were  understood  to  mean  one  hun- 
dred dozen,  that  is,  twelve  hundred.  But 
the  decision  was  placed  on  the  ground 
that  the  words  'hundred,' '  thousand,'  and 
the  like,  were  not  understood,  when  ap- 
plied to  particular  subjects,  to  mean  that 
number  of  units;  that  the  definition  was 
not  fixed  by  law,  and  therefore  was  open 
to  such  proof  of  usage.  Though  it  is  ex- 
ceedingly difficult  to  draw  the  precise  line 
of  distinction,  yet  it  is  manifest  that  such 
evidence  can  be  admitted  only  in  a  few 


cases  like  the  above.  Were  it  otherwise, 
written  instruments,  instead  of  importing 
certainty  and  verity,  as  being  the  sole  re 
pository  of  the  will,  intent,  and  purposes 
of  the  parties,  to  be  construed  by  the 
rules  of  law,  might  be  made  to  speak  a 
very  different  language  by  the  aid  of 
parol  evidence."  [See  also  Attorney- 
General  V.  Clapham,  31  Eng.  Law  &  Eq. 
142.] 

2  Astor  V.  The  Union  Ins.  Co.,  7 
Co  wen,  202. 

8  Peisch  V.  Dickson,  1  Mason,  11,  12 
[Noyes  i'.  Canfield,  1  Williams,  791. 

*  Lucas  ''.  Groning,  7  Taunt.  164. 

^  Chaurand  v.  Angerstien,  Peake's 
Cas.  43.  See  also  Peisch  v.  Dickson,  1 
Mason,  12;  Doe  v.  Benson,  4  B.  &  Ahl. 
588;  United  States  v.  Breed,  1  Sumn. 
159;  Taylor  v.  Briggs,  2  C.  &  P.  525. 
[And  to  explain  such  an  expression  as 
"regular  turns  of  loading,"  in  an  action 
on  a  contract  for  loading  coals  at  New- 
castle. Leideman  v.  Schultz,  24  Eng.  Law 
&  Eq.  305.  Theological  works  of  the 
period  referred  to  are  admissible  to  show 
the  meaning  of  the  words  "  Pro/estnnt 
dissenters,"  in  a  trust  deed.  Drummond  i\ 
Attorney-General,  2  Id.  15;  iti/ra,  §§  288, 
295.] 

•>  Remon  v.  Hayward,  2  Ad.  &  P^l.  666 ; 
Crofts  V.  Marshall,  7  C.  &  P.  597 ;  infra, 
§  300.  But  see  Sheldon  v.  Benham,  4 
Hill  (N.  Y.),  123. 

■?  Lucas  V.  Groning,  7  Taunt.  164, 167, 
168;  Birch  v.  Depeyster.  1  Stark.  210; 
Paley  on  Agency  (by  Lloyd),  p  198; 
Hutchinson  v.  Bowker,  5  M.  &  W  536. 


326 


LAW   OF   EVrOENCB. 


[part  n. 


though  it  were  still  the    customary  and  popular  sense,  is  not 
admissible.^ 

§  281.  niustrations.  The  reason  and  policy  of  the  rule  will  be 
further  seen,  by  adverting  to  some  of  the  cases  in  which  parol 
evidence  has  been  rejected.  Thus,  where  a  policy  of  insurance 
was  effected  on  goods,  "  in  ship  or  ships  from  Surinam  to  Lon- 
don," parol  evidence  was  held  inadmissible  to  show  that  a 
particular  ship  in  the  fleet,  wliich  was  lost,  was  verbally  excepted 
at  the  time  of  the  contract.^  So,  where  a  policy  described  the 
two  termini  of  the  voyage,  parol  evidence  was  held  inadmissible 
to  prove  that  the  risk  was  not  to  commence  untd  the  vessel 
reached  an  intermediate  place. ^  So,  where  the  instrument  pur- 
ported to  be  an  absolute  engagement  to  pay  at  a  specified  day, 
parol  evidence  of  an  oral  agreement  at  the  same  time  that  the 
payment  should  be  prolonged,*  or  depend  upon  a  contingency,^ 


1  Smith  V.  Wilson,  3  B.  &  Ad.  728,  per 
Ld.  Tenterden;  Hockin  v.  Cooke,  4  T.  R. 
314;  Attorney-General  v.  The  Cast  Plate 
Glass  Co.,  1  Anstr.  39 ;  Sleght  v.  Rhine- 
lander,  1  Johns.  192 ;  Frith  »•.  Barker,  2 
Johns.  335;  Stoever  v.  Whitman,  9  Binn. 
417 ;  Henry  v.  Risk,  1  Dall.  465 ;  Doe  v. 
Lea,  11  East,  312;  Caine  v.  Horsetail,  2 
C.  &  K.  349  [Hamson  v.  Barton,  7  Jur. 
N.  s.  19].  Conversations  between  the 
parties  at  the  time  of  making  a  contract 
are  competent  evidence,  as  a  part  of  tiie 
res  gestte,  to  show  the  sense  which  tliey 
attached  to  a  particular  term  used  in 
the  contract.  Gray  v.  Harper,  1  Story, 
574.  Where  a  sold  note  run  thus  :  "  18 
pockets  of  hops,  at  100s.,"  parol  evidence 
was  held  admissible  to  show  that  100*-. 
meant  the  price  per  hundred  weight. 
Spicer  v.  Cooper,  1  G.  &  D.  52.  [Parol 
evidence  is  inadmissible  to  show  that  tlie 
parties  to  a  deed  understood  "  half"  of  a 
rectangular  lot  to  mean  a  less  quantity. 
Butler  v.  Gale,  1  Williams,  739.1 

'^  Weston  i>.  Eames,  1  Taunt.  115. 

^  Kaines  v.  Knightly,  Skin.  54  ;  Leslie 
V.  De  la  Torre,  cited  12  East,  358.  [So 
wiiere  a  policy  was  issued  by  a  mutual 
insurance  company,  and  made  in  terms 
subject  to  the  conditions  of  its  by-laws, 
and  the  by-laws  provided  that  any  policy 
issued  upon  property  previously  insured 
should  be  void  unless  tiie  previous  in- 
surance should  be  expressed  in  the  policy 
when  issued,  parol  evidence  is  inadmissi- 
ble to  show  that  the  fact  of  the  e.xistence 
of  such  prior  insurance,  and  of  the  under- 
standing of  the  insured  tiiat  it  should  re- 
main in  force,  was  made  known  to  the 
defendant  company,  and  assented  to  by 
them,  prior  to  the  cjcecutiou  and  delirery 


of  the  policy.  Barrett  v.  Union  Mut.  Fire 
Ins.  Co.,  7  Cush.  175,  180 ;  Lee  v.  How- 
ard, &c.  Co.,  3  Gray,  583,  592.  But  these 
cases  are  counter  to  the  current  of  au- 
thorities, and  would  hardly  be  followed 
except  in  the  same  State.  Union  Mut. 
Ins.  Co.  V.  Wilkinson,  13  Wall.  (U.  S.) 
222.  So  where  a  bill  of  lading  expressly 
stipulated  that  certain  goods  named 
therein  may  be  carried  on  deck,  parol 
evidence  is  inadmissible  to  show  that  the 
shipper  agreed  and  assented,  at  the  time 
of  the  stowage,  that  an  additional  portion 
of  the  goods  should  be  carried  on  deck. 
Sayward  v.  Stevens,  3  Gray,  97,  102] 

*  Hoare  v.  Graham,  3  Campb.  57 ; 
Hanson  v.  Stetson,  5  Pick.  506  ;  Spring  v. 
Lovett,  11  Pick.  417. 

5  Rawson  v.  Walker,  1  Stark.  361; 
Foster  v.  Jolly,  1  C.  M.  &  R.  703 ;  Hunt 
v.  Adams,  7  Mass.  518 ;  Free  i'.  Hawkins, 
8  Taunt.  92;  Thompson  v.  Ketchum,  8 
Johns.  189;  VVoodbridge  v.  Spooner,  3 
B.  &Ald.  233;  Moseley  v.  Hanford,  10 
B.  &  C.  729 ;  Erwin  v.  Saunders,  1  Cowen, 
249.  [See  Allen  v.  Furbish,  4  Gray,  504, 
500,  in  which  some  of  the  Massachusetts 
cases,  showing  that  parol  evidence  is  in- 
admissible to  annex  a  condition  to  aa 
absolute  promise  in  writing  in  the  form 
of  a  promissory  note,  promising  to  pay 
a  certain  sum  of  money  on  a  certain  day 
named,  are  reviewed  by  Dewey,  J.,  and 
the  principle  reaffirmed.  Ilollonbeck  v. 
Shutts,  1  Gray,  431 ;  Billings  v.  Billings, 
10  Cush.  178,  182;  Soulhwick  v.  Hap- 
good,  Id.  119,  121 ;  Ridgway  v.  Bowman, 
7  Cush.  268,  271.  Parol  evidence  is  not 
admissible  to  show  that  a  promissory  note 
was  intended  for  a  receipt.  City  Bank 
V.  Adams,  45  Maine,  455.J 


CHAP.  XV.]       ADiynSSLBrLITY  OF   PAEOL   EVIDENCE. 


327 


or  be  made  out  of  a  particular  fund,  lias  been  rejected.^  Where 
a  written  agreement  of  partnership  was  unlimited  as  to  the  time 
of  commencement,  parol  evidence  that  it  was  at  the  same  time 
verbally  agreed  that  the  partnership  should  not  commence  until 
a  future  day,  was  held  inadmissible.^  So,  where,  in  assumpsit  for 
use  and  occupation,  upon  a  written  memorandum  of  lease,  at  a 
certain  rent,  parol  evidence  was  offered  by  the  plaintiff  of  an 
agreement  at  the  same  time  to  pay  a  further  sum,  being  the 
ground  rent  of  the  premises,  to  the  ground  landlord,  it  was  re- 
jected.^ So,  where,  in  a  written  contract  of  sale  of  a  ship,  the 
ship  was  particularly  described,  it  was  held  that  parol  evidence  of 
a  further  descriptive  representation,  made  prior  to  the  time  of  sale, 
was  not  admissible  to  charge  the  vendor,  without  proof  of  actual 
fraud ;  all  previous  conversation  being  merged  in  the  \viitten  con- 
tract.*    So,  where  a  contract  was  for  the  sale  and  delivery  of 


'  Campbell  v.  Hodgson,  1  Gow,  74. 

2  Dix  V.  Otis,  5  Pick.  38. 

'  Preston  v.  Merceau,  2  W.  Bl.  1249. 
A  similar  decision  was  made  in  tlie  "  Isa- 
bella," 2  Rob.  Adm.  241,  and  in  White  v. 
Wilson,  2  B.  &  P.  116,  where  seamen's 
wages  were  claimed  in  addition  to  the 
sum  named  in  the  shipping  articles.  The 
English  statutes  not  only  require  such 
contracts  to  be  in  writing,  but  declare 
that  the  articles  shall  be  conclusive  upon 
the  parties.  The  statute  of  the  United 
States  is  equally  imperative  as  to  the 
writing,  but  omits  the  latter  provision  as 
to  its  conclusiveness.  But  the  decisions 
in  both  the  cases  just  cited  rest  upon  the 
general  rule  stated  in  the  text,  which  is 
a  doctrine  of  general  jurisprudence,  and 
not  upon  tlie  mere  positive  enactments 
of  the  statutes.  See  2  Rob.  Adm.  243 ; 
Bogert  V.  Cauman,  Anthon,  70.  The 
American  courts  adopt  the  same  doctrine, 
both  on  general  principles  and  as  agree- 
able to  the  intent  of  the  act  of  Congress 
regulating  the  merchant  service.  See 
Abbott  on  Shipping  (by  Story),  p.  434,  n.; 
Bartlett  n.  Wyman,  14  Johns.  260  ;  John- 
son V.  Dalton,  1  Cowen,  543  [Page  v. 
Sheffield,  2  Curtis,  C.  C.  377].  The 
same  rule  is  applied  in  regard  to  the 
Statute  of  Frauds.  See  11  Mass.  31. 
See  further.  Rich  v.  Jackson,  4  Bro.  Ch. 
514;  Brigham  v.  Rogers,  17  Mass.  571; 
Flinu  V.  Calow,  1  M.  &  G.  589.  [So  an 
oral  promise  to  discharge  an  incumbrance 
not  created  by  himself,  made  by  a  grantor 
to  a  grantee,  cannot  be  shown  to  have 
been  made  at  the  same  time  and  for  the 
same  consideration,  as  a  deed  contain- 


ing covenants  of  special  warranty  only. 
Howe  I".  Walker,  4  Gray,  318;  Goodrich 
V.  Longley,  Id.  379,  383.  Nor  can  a  lim- 
ited warranty  in  a  deed  be  extended  to  a 
general  warranty  by  proof  of  a  parol  agree- 
ment to  that  effect,  made  at  the  time  of 
the  delivery  of  the  deed.  Raymond  v. 
Raymond,  10  Cush.  134,  141;  Dutton  v. 
Gerrish,  9  Id.  89.  Nor  can  it  be  shown 
by  parol  that  the  name  of  the  grantee  in 
a  deed  was  inserted  therein  by  mistake 
of  the  scrivener,  in  place  of  another  per- 
son who  was  intended  as  the  grantee, 
and  who  afterwards  entered  upon  and 
occupied  the  land.  Crawford  v.  Spencer, 
8  Cush.  418. 

Where  a  lease,  under  seal,  of  coal 
lands,  said  nothing  as  to  the  quantity  to 
be  mined,  but  establisiied  the  price  per 
bushel  for  all  tliat  was  mined,  it  cannot 
be  shown  by  parol  that  the  lessee,  at  tiie 
time  of  signing  tlie  lease,  promised  to 
mine  all  he  could  disjjose  of.  Lyon  u. 
Miller,  24  Penn.  St.  392;  Kennedy  r. 
Erie,  &c.  Plank  Road  Co.,  25  Id.  224; 
Chase  v.  Jewett,  37  Maine,  351.  "  Furring 
for  the  whole  house,"  in  a  written  build- 
ing contract,  cannot  be  shown  by  parol 
to  mean  only  usual  furring.  Herrick  v. 
Noble,  1  Williams,  1.  Nor  can  it  be 
shown  by  parol  that  an  assignment  of 
store  goods  was  intended  to  include  the 
"  store  books."  Taylor  v.  Sayre,  4  Zabr. 
647.] 

*  Pickering  v.  Dowson,  4  Taunt.  779. 
See  also  Powell  v.  Edmunds,  12  East,  (3; 
Pender  v.  Fobes,  1  Dev.  &  Bat.  250; 
Wright  V.  Crookes,  1  Scott,  N.  R.  (34. 


Z2S 


LAW   OF  EVIDENCE. 


[PAET  n. 


"  Ware  potatoes,"  of  which  there  were  several  kinds  or  qualities, 
parol  evidence  was  held  not  admissible  to  show  that  the  contract 
was  in  fact  for  the  best  of  those  kinds. ^  Where  one  sio^ned  a 
premium  note  in  his  own  name,  parol  evidence  was  held  inadmis- 
sible to  show  that  he  signed  it  as  the  agent  of  the  defendant,  on 
whose  property  he  had  caused  insurance  to  be  effected  by  the 
plaintiff,  at  the  defendant's  request,  and  who  was  sued  as  the  jDrom 
isor  in  the  note,  made  by  his  agent.^  So,  where  an  agent  let  a 
ship  on  hire,  describing  himself  in  the  charter-party  as  "owner," 
it  was  lield,  in  an  action  upon  the  charter-party,  brought  by  the 
true  owner,  that  parol  evidence  was  not  admissible  to  show  that 
the  plaintiff,  and  not  the  agent,  was  the  real  owner  of  the  sliip.^ 
Even  the  subsequent  confession  of  the  party,  as  to  the  true  intent 
and  construction  of  the  title-deed,  under  which  he  claims,  will  be 
rejected.*  The  books  abound  in  cases  of  the  application  of  this 
rule ;  but  these  are  deemed  sufficient  to  illustrate  its  spmt  and 
meaning,  which  is  the  extent  of  our  present  design. 

§  282.  Other  language  only  excluded.  From  the  examples  given 
in  the  two  preceding  sections,  it  is  thus  apparent  that  the  rule 
excludes  only  parol  evidence  of  the  language  of  the  parties,  contra- 


1  Smith  V.  Jeffreys,  15  M.  &  W.  561. 

2  Stackpole  v.  Arnold,  11  Mass.  27. 
See  also  Hunt  v.  Adams,  7  Mass.  518 ; 
Shankland  v.  City  of  Washington,  5 
Peters,  394  [Myrick  v.  Dame,  9  Cash. 
248,  254].  But  parol  evidence  is  admis- 
sible to  show  that  one  of  several  prom- 
isors signed  as  the  surety  of  another. 
Carpenter  v.  King,  0  Met.  511 ;  McGee  v. 
Prouty,  Id.  547  [Davis  v.  Barrington,  10 
Foster,  517.  See  Arnold  v.  Cessna,  25 
Penn.  St.  34.  (So  as  between  succes- 
sive indorsers,  that  they  were  in  fact 
cosureties.  Weston  v.  Chamberlain,  7 
Cush.  404);  Riley  v.  Gerrish,  9  Id.  104. 
And  an  agreement  between  two  sureties 
on  a  bond,  that  one  of  them  shall  not,  as 
between  themselves,  be  liable  in  conse- 
quence of  his  becoming  such  a  surety, 
may  be  proved  by  parol.  Barry  v.  Han- 
som, 2  Kernan,  4ti2.  But  see  Norton  v. 
Coons,  2  Selden,  ;>8.  So  upf)n  a  joint  and 
several  note  that  one  of  the  signers  is  a 
surety,  a  fact  not  ajipearing  on  its  face, 
for  the  purpose  of  showing  that  the  de- 
fendants gave  time  to  the  i)riiu;i]ial  with- 
out the  surety's  consent.  Dickinson  v. 
Commissioner,  6  Ind.  128  ;  Riley  v.  Gregg, 
10  Wis.  fiOfi.  And  so,  generally,  to  show 
the  reiati<ms  of  the  several  parties  to  each 
other.     Br.  Bk.  of  Mobile  i^.  Coleman,  20 


Ala.  140].  And  where  a  special  agreement 
was  made  in  writing  for  the  sale  of  goods 
from  A  to  B,  the  hitter  being  in  part  the 
agent  of  C,  whose  name  did  not  appear 
in  the  transaction,  it  was  held,  that  C 
might  maintain  an  action  in  his  own 
name  against  A  for  the  breach  of  this 
contract,  and  that  parol  evidence  was  ad- 
missible to  prove,  that  B  acted  merely  as 
the  agent  of  C,  and  for  liis  exclusive  ben- 
efit. Hubbert  v.  Borden,  6  Wharton,  79. 
[So  that  a  lease  executed  by  an  adminis- 
trator was  for  the  benefit  of  the  estate, 
Russell  V.  Erwin,  41  Ala.  292;  and  that  a 
certificate  of  deposit  taken  by  a  guardian 
was  for  the  benefit  of  the  ward,  Beasley 
V.  Watson,  Id.  234.] 

8  Humble  v.  Hunter,  12  Ad.  &  El.  n.  9. 
310.  And  see  Lucas  v.  De  la  Cour,  1  M. 
&  S.  249;  Robson  i-.  Drummond,  2  E.  & 
Ad.  303. 

*  Paine  v.  Mclntire,  1  Mass.  69,  as  ex- 
plained in  10  Mass.  401.  See  also  Town- 
send  i>.  Weld,  8  Mass.  146.  [Where  the 
plaintiff  declares  upon  and  ])uts  in  evi- 
dence a  written  contract  as  his  ground  of 
action,  he  cannot  put  in  evidence  the 
oral  declarations  of  the  defendant  as  to 
his  supposed  liability.  Goodell  v.  Smitl , 
9  Cush.  692,  694.] 


CHAP.  XV.]       ADIVnSSrBILITY  OF  PAHOL  EVIDENCE.  329 

dieting,  varying,  or  adding  to  that  which  is  containec''  in  the 
written  instrument ;  and  tliis  because  they  have  themseh  es  com- 
mitted to  writing  all  which  they  deemed  necessary  to  give  full 
expression  to  their  meaning,  and  because  of  the  mischiefs  which 
would  result,  if  verbal  testimony  were  in  such  cases  received. 
But  where  the  agreement  in  writing  is  expressed  in  short  and 
incomplete  terms,  parol  evidence  is  admissible  to  explain  that 
which  is  per  se  unintelligible,  such  explanation  not  being  incon- 
sistent with  the  written  terms.^  It  is  also  to  be  kept  in  mind, 
that  though  the  first  question  in  all  cases  of  contract  is  one  of 
interpretation  and  intention,  yet  the  question,  as  we  have  already 
remarked,  is  not  what  the  parties  may  have  secretly  and  in  fact 
intended,  but  what  meaning  did  they  intend  to  convey,  by  the 
words  they  employed  in  the  written  instrument.  To  ascertain 
the  meaning  of  these  words,  it  is  obvious  that  parol  evidence  of 
extraneous  facts  and  circumstances  may  in  some  cases  be  ad- 
mitted to  a  very  great  extent,  without  in  any  wise  infringing  the 
spirit  of  the  rule  under  consideration.  These  cases,  which  in 
truth  are  not  exceptions  to  the  rule,  but  on  the  contrary  are 
out  of  the  range  of  its  operation,  we  shall  now  proceed  to  con- 
sider.2 

§  283.  Several  writings.  It  is  in  the  first  place  to  be  observed, 
that  the  rule  does  not  restrict  the  court  to  the  perusal  of  a  single 
instrument  or  paper ;  for,  while  the  controversy  is  between  the 
original  parties,  or  their  representatives,  all  their  contemporaneous 
writings^  relating  to  the  same  subject-matter,  are  admissible  in 
evidence.^ 

§  284.  May  be  shown  to  be  void.  It  is  in  the  next  place  to  be 
noted,  that  the  rule  is  not  infringed  by  the  admission  of  parol 
evidence,  showing  that  the  instrument  is  altogether  void^  or  that 

'  Sweet   V.   Lee,   3   Man.    &   Gr.  452  Mumford  v.   Gothing,  7  C.  B.   n.  s.  305; 

[Webster   v.   Hodgkins,   5    Foster,    128.  Almgren  i'.  Dutilh,  5  N.  Y.  28;  Bennett 

Where   there   is  an  acknowledgment  of  v.   Stow,   15  III.  42-3;  Stoops   v.   Smith, 

indebtedness,  by  making  tiiis  menioran-  100  Mass.  63 ;  Hart  v.  Hammett,  13  Vt. 

dum,  "I  (J  U  the  sum  of  §160,  which  I  127  ;  Sargent  v.  Adams,  3  Gray,  (Mass.) 

shall  pay  on  demand  to  you,"  parol  evi-  72.     And  see  post,  §  288;  ante,  §  280.] 

dence  is  admissible  to  show  the  person  to  ^  Leeds  v.  Lancashire,  2  Campb.  205  ; 

whom  it  is  addressed.     Kinney  v.  Flynn,  Hartley   v.    Wilkinson,   4   Campb.    127  ; 

2  R.  I.  319].  Stone  v.  Metcalf .  1  Stark.  53 ;  Bowerbank 

2  [So  evidence  of  language  used  by  the  v.  Monteiro,  4  Taunt.  846,  per  Gibbs,  J. ; 

parties  during  the  negotiation,  explana-  Hunt  v.  Livermore,  5  Pick.  395  ;  Davlin 

tory,  and  not  contradictory,  of  the  Ian-  v.  Hill,  2  Fairf .  434 ;  Couch  v.  Meeker,  2 

guage  used  in  the  contract,  is  admissible.  Conn.  302  ;  Lee  i'.  Dick,  10  Pet.  482  ;  Bell 

Thorington  v.  Smith,  8  Wall.   (U.  S.)  1;  v.   Bruen,   17  Pet.   161;  8.  c.  1  Howard, 

McDonald  v.  Longbotham,  1  E.  &  E.  977  ;  S.  C.  Itj9,  183. 


330 


LAW   OF  EVIDENCE. 


[PAUT  n. 


it  never  had  any  legal  existence  or  binding  force  ;  either  by  rea- 
son of  fraud,  or  for  want  of  due  execution  and  delivery,  or  for  the 
illegality  of  the  subject-matter.  This  qualification  applies  to  all 
contracts,  whether  under  seal  or  not.  Tlie  want  of  consideration 
may  also  be  proved  to  show  that  the  agreement  is  not  binding ; 
unless  it  is  either  under  seal,  which  is  conclusive  evidence  of  a 
sufficient  consideration,^  or  is  a  negotiable  instrument  in  the  hands 
of  an  innocent  indorsee.^  Fraud,  practised  by  the  party  seeking 
the  remedy,  upon  him  against  whom  it  is  sought,  and  in  that 
whicli  is  the  subject-matter  of  the  action  or  claim,  is  universally 
held  fatal  to  his  title.  "  The.  covin,"  says  Lord  Coke,  "  doth 
suffocate  the  right."  The  foundation  of  the  claim,  whether  it  be 
a  record,  or  a  deed,  or  a  writing  without  seal,  is  of  no  importance  ; 
they  being  alike  void,  if  obtained  by  fraud.^  Parol  evidence  may 
also  be  offered  to  show  that  the  contract  was  made  for  the  fur- 
therance of  objects  forbidden  by  law,^  whether  it  be  by  statute,  or 
by  an  express  ride  of  the  common  law,  or  by  the  general  policy 
of  the  law;  or  that  the  writing  was  obtained  hy  felony,^  or  by 
duress  ;  ^  or  that  the  party  was  incapable  of  binding  himself,  either 
by  reason  of  some  legal  impediment,  such  as  infancy  or  coverture,'' 
or  from  ^actual  imbecility  or  want  of  reason,^  whether  it  be  by 
means  of  permanent  idiocy  or  insanity,  or  from  a  temporary  cause, 


1  Supra,  §§  10,  22  ;  infra,  §  303. 

2  Supra,  §§  189,  190. 

3  2  Stark.  Evid.  340;  Tait  on  Evki. 
327,  328;  Chitty  on  Contr.  527a,-  Buckler 
i;.  Millerd,  2  Vontr.  1U7  ;  Kilmer  v.  Gott, 
4  Bro.  P.  C.  230  ;  Taylor  v.  Weld,  5  Mass. 
116,  per  Sedgwick,  J. ;  Francliot  v.  Leacli, 
6  Cowen,  508  ;  Dorr  v.  Munsell,  13  Johns. 
431;  JVIorton  v.  Ciiandler,  8  Greenl.  9; 
Commonwealth  v.  Bullard,  9  Mass.  270; 
Scott  V.  Burton,  2  Ashm.  312  [Allen  i'. 
Furbish,  4  Gray,  504,  509;  Prescott  v. 
Wri<rht,  Id.  461  ;  Gushing  v.  Rice,  46 
Maine,  303  ;  Thomson  v.  Bell,  37  Ala.  438; 
Plant  I'.  Condit,  22  Ark.  451;  Selden  v. 
Myers.  20  How.  (U.  S.)  500]. 

*  Collins  I'.  Blantern,  2  Wils.  347 ;  1 
Smith's  Leading  Cas.  154,  108,  n.,  and 
c  ises  there  cited.  If  the  contract  is  by 
deed,  the  illegality  must  be  specially 
pleaded.  Wlielpdale's  case,  6  Co.  110; 
Mestayer  v.  Biggs,  4  Tyrw.  471.  But 
the  rule  in  tlie  text  applies  to  such  cases, 
as  well  as  to  those  arising  under  the  gen- 
eral issue.  See  also  Biggs  v.  Lawrence, 
3  T.  R.  454  [see  Corbin  v.  Adams,  6 
Gush.  (H),  for  qiU'ries  as  to  Biggs  v.  Law- 
renccj;   Waymell  v.  lieed,  6  T.  R.  600; 


Doe  V.  Ford,  3  Ad.  &  El.  649 ;  Catlin  », 
Bell,  4  Campb.  183 ;  Conmionwealth  v. 
Pease,  16  Mass.  91 ;  Norman  v.  Cole,  3 
Esp.  253 ;  Sinclair  v.  Stevenson,  1  C 
&  P.  582;  Chitty  on  Contr.  519-527 
[Where  the  transaction  is  alleged  to  be 
usurious,  or  otherwise  illegal,  parol  evi 
dence  is  admissible  to  vary  or  contra 
diet  the  terms  of  a  contract,  for  the  pur 
pose  of  showing  its  real  character.  Hew- 
ett  V.  Dement,  57  111.  500;  Newsome  v. 
Theghen,  30  Miss.  414  ;  Ferguson  v.  Sut 
phen,  8  111.  547.  So  it  is  admissible  to 
contradict  a  writing  introduced  to  sup 
port  a  usurious  contract.  Fenwick  v 
Katcliff,  6  B.  Mon.  (Ky.)  154.] 

5  2  B.  &  P.  471,  per  Heath.  J. 

6  2  Inst.  482, 483  ;  5  Com.  Dig.  Pleader, 
2  W.  18-23  ;  Stouffer  v.  Latshaw,  2  Watts, 
165 ;  Tliompson  v.  Lockwood,  15  Johns. 
256 ;  2  Stark.  Evid.  274. 

^  2  Stark.  Evid.  274  ;  Anon.,  12  Mod. 
600;  Van  Valkenburg  w.  Houk,  12  Johns. 
338;  2  Inst.  482,  483;  5  Dig.  uh.  sup. 

8  2  Kent,  Comm.  450-453,  and  cases 
there  cited ;  Webster  v.  Woodford,  3 
Day,  00 ,  Mitchell  v.  Kingman,  6  Pick. 
431 ;  Rice  v.  Poet,  15  Johns.  503. 


CHAP.  XV.]        AD:^^SSIBILITY   OF   PAEOL   EVIDENCE. 


831 


such  as  drunkenness  ;  ^  or  that  the  instrument  came  mto  the 
hands  of  the  plamtiff  without  any  absolute  and  final  delivery ^"^  by 
the  obligor  or  party  charged. 

§  284  a.  ^Vhell  writing  is  incomplete.  Nor  does  the  rule  apply 
in  cases  where  tlie  original  contract  was  verbal  and  entire,  and  a 
j)art  only  of  it  was  reduced  to  writing.  Thus,  where,  upon  an 
adjustment  of  accounts,  the  debtor  conveyed  certain  real  estate 
to  the  creditor  at  an  assumed  value,  which  was  greater  than  the 
amount  due,  and  took  the  creditor's  promissory  note  for  tlie 
balance ;  it  being  verbally  agreed  that  the  real  estate  should  be 
sold,  and  the  proceeds  accounted  for  by  the  grantee,  and  that  the 
deficiency,  if  any,  below  the  estimated  value,  should  be  made 
good  by  the  grantor ;  which  agreement  the  grantor  afterwards 
acknowledged  in  writing,  —  it  was  held,  in  an  action  brought  by 
the  latter  to  recover  the  contents  of  the  note,  that  the  whole 
agreement  was  admissible  in  evidence  on  the  part  of  the  defend- 
ant ;  and  that,  upon  the  proof  that  the  sale  of  the  land  produced 
less  than  the  estimated  value,  the  deficiency  should  be  deducted 
from  the  amount  due  upon  the  note.^ 


1  See  Barrett  v.  Buxton,  2  Aik.  167, 
where  this  point  is  ably  examined  by 
Prentiss,  J. ;  Seymour  v.  Dehincy,  3 
Cowcn,  518;  1  Story's  Eq.  Jur.  §  231, 
n.  (2)  ;  Wigglesvvorth  v.  Steers,  1  Hen. 
&  Munf .  70 ;  Prentice  v.  Achorn,  2  Paige, 
31. 

2  Clark  V.  GifEord,  10  Wend.  310; 
United  States  v.  Leffler,  11  Peters,  86  ; 
Jackson  d.  Titus  v.  Myers,  11  Wend.  533, 
536 ;  Couch  v.  Meeker,  2  Conn.  302. 
[Parol  evidence  is  admissible  of  a  con- 
temporaneous agreement,  which  consti- 
tutes a  condition  on  the  performance  of 
which  the  validity  of  the  written  agree- 
ment depends,  Black  v.  Lamb,  1  Beasley 
(N.  J.),  108  ;  as  that  a  deed  was  delivered 
only  as  an  escrow,  Murray  v.  Lord  Stair, 
2  B.  &  C.  82 ;  or  that  a  document  signed 
as  an  agreement  had  not  been  intended 
by  the  parties  to  operate  as  a  present  con- 
tract, but  that  it  was  to  be  effective  only 
in  a  certain  contingency,  Pyni  v.  Camp- 
bell, 6  K.  &  B.  370 ;  Davis  v.  Jones,  17  C.  B. 
625 ;  Earle  v.  Rice,  11 1  Mass.  17.  So  as  to 
wills.  3  Sw.  &  Tr.  282.  A  parol  contem- 
poraneous agreement  on  some  collateral 
matter  may  also  be  proved.  Lindley  v. 
Lacey,  17  C.  B.  578 ;  Morgan  v.  Griffith, 
6  L.  R.  Ex.  70.  A  deed,  bond,  or  bill 
of  sale,  absolute  on  its  face,  may  be 
shown  to  have  been  delivered  and  in- 
tended as  a  mortgage  or  collateral  secur- 


ity, Odenbaugh  v.  Bradford,  67  Pa.  St. 
96  ;  Chester  v.  Bk.  of  Kingston,  16  N.  Y. 
336;  Lindauer  v.  Cummings,  57  111.  195; 
but  not  a  promissory  note,  Walker  v. 
Crawford,  56  111.  444 ;  Howard  v.  Odell, 
1  Allen  (Mass.),  85;  Clark  v.  Wash.  N. 
&  M.  M.  Ins.  Co.,  100  Mass.  509.  The 
kind  of  parol  evidence  admissible  to  show 
an  absolute  deed  to  be  a  mortgage  is 
that  of  facts  and  circumstances  of  such 
a  nature  as,  in  a  court  of  equity,  will 
control  the  operation  of  the  deed,  and 
not  of  loose  declarations  of  parties  touch- 
ing their  intentions  or  understandings. 
These  latter,  alone,  do  not  suffice  to 
show  the  fact.  Lindauer  v.  Cummings, 
57  111.  195;  Plumer  v.  Guthrie,  76  Pa.  St. 
441.] 

3  Lewis  I'.  Gray,  1  Mass.  207 ;  Lapham 
5  Whipple,  8  Met.  59  [Sheffield  v.  Page, 
Sprague's  Decisions,  285;  Harris  r.  For- 
man,  5  Com.  B.  N.  s.  1  ;  Wallis  v.  Lit- 
tell,  11  Com.  B.  n.  s.  368;  8  Jur.  n.  s. 
745 ;  see  also  Wake  v.  Hai'top,  10  W.  R. 
626 ;  s.  c.  7  Law  T.  n.  s.  96,  in  the  Ex- 
ciiequer  Chamber ;  Crane  v.  Elizabeth, 
&c.,  29  N.  J.  Law,  302.  So  where  tiie 
contract  is  part  by  parol  and  part  by  tele- 
gram, the  part  by  parol  may  be  shown 
to  control  and  modify  that  by  telegram. 
Beach  v.  Ear.  &  Del.  R.  R.  Co.,  37  N.  Y. 
457.  So  where  the  writing  is  so  obscure 
as  to  require  parol  evidence  to  give  it 


832  LAW   OF  EVIDENCE.  [PAKT  H. 

§  285.  To  explain  recitals  of  fact.  Neither  is  this  rule  in- 
fringed by  the  introduction  of  parol  evidence,  contradicting  or 
explaining  the  instrument  in  some  of  its  recitals  of  facts ^  where 
such  recitals  do  not,  on  other  principles,  estop  the  party  to  deny 
tliem  ;  and  accordingly  in  some  cases  such  evidence  is  received.^ 
Thus,  in  a  settlement  case,  where  the  value  of  an  estate,  upon 
which  the  settlement  was  gained,  was  in  question,  evidence  of  a 
greater  sum  paid  than  was  recited  in  the  deed  was  held  admissi- 
ble.'-^ So,  to  show  that  the  lands,  described  in  the  deed  as  in  one 
parish,  were  in  fact  situated  in  another.^  So,  to  show  that  at  the 
tune  of  entering  into  a  contract  of  service  in  a  particular  employ- 
ment, there  was  a  further  agreement  to  pay  a  sum  of  money  as  a 
premium,  for  teaching  the  party  the  trade,  whereby  an  appren- 
ticeship was  intended ;  and  that  the  whole  was  therefore  void  for 
want  of  a  stamp,  and  so  no  settlement  was  gained.^  So,  to  con- 
tradict the  recital  of  the  date  of  a  deed ;  as,  for  example,  by 
proving  that  a  charter-party,  dated  February  6th,  conditioned  to 
sail  on  or  before  February  12th,  was  not  executed  till  after  the 
latter  day,  and  that  therefore  the  condition  was  dispensed  with.^ 
So,  to  show  that  the  reference  in  a  codicil  to  a  will  of  1833  was 
a  mistake,  that  will  being  supposed  to  be  destroyed ;  and  that 
the  will  of  1837  was  intended.^  And,  on  the  other  hand,  where 
a  written  guaranty  was  expressed  to  be  "  in  consideration  of  your 
having  discounted  V.'s  note,"  and  it  was  objected  that  it  was  for 
a  past  consideration,  and  therefore  void,  explanatory  parol  evi- 
dence was  held  admissible,  to  show  that  the  discount  was  con- 
temporaneous with  the  guaranty.'  So,  where  the  guaranty  was 
"in  consideration  of  your  having  this  c?ay  advanced  to  V.  D.," 
similar  evidence  was  held  admissible.^  It  is  also  admissible  to 
show  when  a  written  promise,  without  date,  was  in  fact  made.^ 

meaning.    Pharaoh  v.  Lush,  2  F.  &  F.  ■*  Rex  i-.  Laindon,  8  T.  R.  379  [Creamer 

72.    So  to  explain  "  C.  ().  D.  $50."     Col-  v.  Stephenson,  15  Md.  211]. 

lender  v.  Dunsmore,  55  N.  Y.  200].  5  Jiall  i".  Cazenove,  4  East,  477.     See 

1  2  Poth.  on  Ohl.  by  Evans,  pp.  181,  further,  Tait  on  Evid.  pp.  332,  333-336; 
1S2    [Harris   v.   Rickett,  4    II.    &   N.   1;  i/i/Ja,  §  304. 

Chapman  v.  Callis,  2  F.  &  F.  161].  <>  Quincey  v.  Quincey,  11  Jur.  111. 

2  Rex  V.  Scanimonden,  3  T.  R.  474.  ^  Ex  jiarte  Flight,  .35  Lep.  Obs.  240. 
See  also  Doe  r.  Ford,  3  Ad.  &  Kl.  (549.          And  see  Haigh  v.  Brooks,  10  Ad.  &  El. 

8  Rex  V.  Wickhan,  2  Ad.  &  Kl.  517.  309;    Butcher   v.    Stuart,    11    M.    &   W. 

[The  jilan  or  map  of  a  railroad,  filed  with  857. 

the  loeation,  and  constitnting  part  of  the  "  Goldshede   v.   Swan,  35   Leg.   Obs. 

description,  mny  be  referred  to,  to  explain  203;  1  Exch.  154.     This  case  has  been 

the  written  loeation,  but  not  to  vary  or  tlie  subject  of  some  animated  discussion 

modify  it.     Ilazen  r.  Boston  &  M.  H.'  R.,  in  England.     See  12  Jur.  22,  94,  102. 

2  (iray,  574.  oT'.t;  Boston  &  P.  U.  R.  v.  »  Lobb  v.  Stanley,  5  Ad.  &  El.  N.  8. 

Midland  R.  R.,  1  Gray,  340.)  674. 


CHAP.  XV.]       ADMISSIBILITY   OF  PAROL  EVIDENCE.  333 

Evidence  may  also  be  given  of  a  consideration,  not  mentioned  in 
a  deed,  provided  it  be  not  inconsistent  with  the  consideration  ex- 
pressed in  it.^ 

§  286.  To  show  nature  of  the  subject-matter.  As  it  is  a  leading 
rule,  in  regard  to  written  instruments,  that  they  are  to  be  inter- 
preted according  to  their  subject-matter,  it  is  obvious  that  parol 
or  verbal  testimony  must  be  resorted  to,  in  order  to  ascertain  the 
nature  and  qualities  of  the  subject,'^  to  which  the  instrument  refers. 
Evidence,  which  is  calculated  to  explain  the  subject  of  an  instru- 
ment, is  essentially  different  in  its  character  from  evidence  of 
verbal  communications  respecting  it.  Whatever,  therefore,  indi- 
cates the  nature  of  the  subject,  is  a  just  medium  of  interpretation 
of  the  language  and  meaning  of  the  parties  in  relation  to  it,  and 
is  also  a  just  foundation  for  giving  the  instrument  an  interpre- 
tation, when  considered  relatively,  different  from  that  which  it 
would  receive  if  considered  in  the  abstract.  Thus,  where  certain 
premises  were  leased,  including  a  yard,  described  by  metes  and 
bounds,  and  the  question  was,  whether  a  cellar  under  the  yard 
was  or  was  not  included  in  the  lease  ;  verbal  evidence  was  held 
admissible  to  show  that,  at  the  time  of  the  lease,  the  cellar  was 
in  the  occupancy  of  another  tenant,  and,  therefore,  that  it  could 
not  have  been  intended  by  the  parties  that  it  should  pass  by  the 
lease.^  So,  where  a  house,  or  a  mill,  or  a  factory,  is  conveyed, 
eo  nomine,  and  the  question  is,  as  to  what  was  part  and  parcel 
thereof,  and  so  passed  by  the  deed,  parol  evidence  to  this  point 
is  admitted.^ 

§  287.  Rule  substantially  the  same  in  wills.  Indeed,  there  is  no 
material  difference  of  principle  in  the  rules  of  interpretation 
bettveen  wills  and  contracts,  except  what  naturally  arises  from  the 
different  circumstances  of  the  parties.  The  object,  in  both  cases, 
is  the  same,  namely,  to  discover  the  intention.     And,  to  do  this, 

1  Clifford  V.  Turrill,  9  Jur.  633.  notes ;  Chadwick  v.  Burnley,  12  W.  R. 

2  In  the  term  "  subject,"  in  this  con-     1077]. 

nection,  text-writers  include  every  thing  *  Ropps  v.  Barker,  4  Pick.  2-39 ;  Farrar 

to  which  the  instrument  relates,  as  well  r.  Staekpole,  6  Greenl.  154;  infra,  §  287, 

as  the  person  who  is  the  other  contract-  cases  in  note.     But  where  the  language 

ing  party,  or  who  is  tlie  object  of  the  of  the  deed  was  broad  enougli  plainly  to 

provision,  wliethor  it  be  by  will  or  deed,  include  a  garden,  together  with  the  house, 

Phil.  &  Am.  on  Evid.  732,  n.  (1).  it  was  held,  that  the  written  paper  of 

•*  2  Poth.  on  Obi.  by  Evans,  p.  185;  conditions  of  sale,  excepting  the  garden. 

Doe  d.  Freeland  v.  Burt,  1   T.  R.  701 ;  was  inadmissible  to  contradict  the  deed. 

Elfe  V.  Gadsden,  2  Rich.  373  ;  Brown  v.  Doe  v.  Wheeler,  4  P.  &  D.  273  [GoodricU 

Slater,  16  Conn.  192 ;  Milbourn  v.  Ewart,  v.  Longley,  1  Gray,  615,  6181. 
6  T.  R.  381,  385  [infra,  §§  401,  402,  and 


334 


LAW   OF  EVIDENCE. 


[PAUT  II. 


the  court  may,  in  either  case,  put  themselves  in  the  place  of  the 
parti/,  and  then  see  how  the  terms  of  the  instrument  affect  the 
property  or  subject-matter.^     With  this  view,  evidence  must  be 


1  Doe  V.  Martin,  1  N.  &  M.  524  ;  8.  c. 
4  B.  &  Ad.  771,  785,  per  Park,  J.;  Hol- 
stein  V.  Jurapson,  4  Esp.  189 ;  Brown  v. 
Thorndvke,  15  Pick.  400;  Phil.  &  Am.  on 
Evid.  730  ;  2  Phil.  Evid.  277.  [Prior,  con- 
temporaneous, and  subsequent  enjoyment 
of  a  right  claimed,  is  admissible  to  show 
the  condition  of  property,  in  order  to  place 
the  court  in  the  position  of  the  parties. 
Baird  v.  Fortune,  7  Jur.  n.  s.  926.]  The 
rules  of  interpretation  of  wills,  in  Vice- 
Chancellor  Wigram's  admirable  treatise 
on  that  subject,  may  be  safely  applied, 
viutato  nomine,  to  all  other  private  instru- 
ments. They  are  contained  in  seven 
propositions,  as  the  result  both  of  prin- 
ciple and  authority,  and  are  thus  ex- 
pressed :  "  I.  A  testator  is  always  pre- 
sumed to  use  the  words,  in  which  he 
expresses  himself,  according  to  their  strict 
and  primary  acceptation,  unless,  from  the 
context  of  the  will,  it  appears  that  he  has 
used  them  in  a  different  sense  ;  in  which 
case,  the  sense  in  which  he  thus  appears 
to  have  used  them  will  be  the  sense  in 
■which  they  are  to  be  construed.  II. 
Where  there  is  nothing  in  the  context 
of  a  will,  from  which  it  is  apparent  that 
a  testator  has  used  the  words,  in  which  he 
has  expressed  himself,  in  any  other  than 
their  strict  and  primary  sense,  and  where 
his  words  so  interpreted  are  sensible  with 
reference  to  extrinsic  circumstances,  it  is 
an  inflexible  rule  of  construction,  that  the 
words  of  the  will  shall  be  interpreted  in 
their  strict  and  primary-  sense,  and  in  no 
other,  although  they  may  be  capable  of 
some  popular  or  secondary  interpretation, 
and  although  the  most  conclusive  evi- 
dence of  intention  to  use  them  in  such 
popular  or  secondary  sense  be  tendered. 
III.  Where  there  is  nothing  in  the  con- 
text of  a  will,  from  which  it  is  apparent 
that  a  testator  lias  used  the  words  in 
which  he  has  expressed  liimself  in  any 
other  than  their  strict  and  primary  sense, 
but  his  words  so  interpreted  are  insensible 
with  reference  to  extrinsic  circumstances, 
a  (rourt  of  law  may  look  into  the  extrinsic 
ciicumstances  of  the  case,  to  see  whether 
the  meaning  of  the  words  be  sensible  in 
any  popular  or  secondary  sense,  of  which, 
with  reference  to  these  circumstances, 
tiiey  are  capable.  IV.  Wliere  the  char- 
acters, in  which  a  will  is  written,  are  diffi- 
cult to  be  deciphered,  or  the  language  of 
the  will  is  not  imderstood  by  the  court, 
the  evidence  of  persons  skilled  in  de- 
ciphering writing,  or  who  understand  the 


language  in  which  the  will  is  written,  is 
admissible  to  declare  what  the  characters 
are,  or  to  inform  the  court  of  the  proper 
meaning  of  the  words.  V.  For  the  pur- 
pose of  determining  the  object  of  a  testa- 
tor's bounty,  or  the  subject  of  disposition, 
or  the  quantity  of  interest  intended  to  be 
given  by  his  will,  a  court  may  inquire 
into  every  material  fact  relating  to  the 
person  who  claims  to  be  interested  under 
the  will,  and  to  the  property  which  is 
claimed  as  the  subject  of  disposition,  and 
to  the  circumstances  of  tlie  testator  and 
of  his  family  and  affairs  ;  for  the  purpose 
of  enabling  the  court  to  identify  the  per- 
son or  thing  intended  by  the  testator,  or 
to  determine  the  quantity  of  interest  he 
has  given  by  his  will.  The  same  (it  is 
conceived)  is  true  of  every  other  disputed 
point,  respecting  which  it  can  be  shown, 
that  a  knowledge  of  extrinsic  facts  can 
in  any  way  be  made  ancillary  to  the  right 
interpretation  of  a  testator's  words.  VI. 
Where  the  words  of  a  will,  aided  by  evi- 
dence of  the  material  facts  of  the  case, 
are  insufficient  to  determine  the  testator's 
meaning,  no  evidence  will  be  admissible 
to  prove  what  the  testator  intended,  and 
the  will  (except  in  certain  special  cases  — 
see  Proposition  VII.)  will  be  void  for  un- 
certainty. VII.  Notwithstanding  the  rule 
of  law,  which  makes  a  will  void  for  un- 
certainty, where  the  words,  aided  by  evi- 
dence of  the  material  facts  of  the  case, 
are  insufiicient  to  determine  the  testator's 
meaning,  courts  of  law,  in  certain  special 
cases,  admit  extrinsic  evidence  of  inten- 
tion, to  make  certain  the  person  or  thing 
intended,  where  the  description  in  the 
will  is  insufficient  for  the  purpose.  These 
cases  may  be  thus  defined:  where  the 
object  of  a  testator's  bounty-,  or  the  sub- 
ject of  disposition  (/.  e.  person  or  thing 
intended),  is  described  in  terms  wliich  are 
applicable  indifferently  to  more  than  one 
person  or  thing,  evidence  is  admissible  to 
prove  which  of  the  persons  or  things  so 
described  was  intended  by  the  testator." 
See  Wigram  on  the  Admission  of  Extrin- 
sic Evidence  in  aid  of  the  Interpretation 
of  Wills,  pp.  11-14.  See  also  Guy  v. 
Sharp,  1  M.  &  K.  ()02,  per  Ld.  Brougham, 
C.  [post,  vol.  ii.  §  671.  For  Mr.  Powell's 
rules  for  the  construction  of  devises,  see 
2  Pow.  on  Dev.  by  Jarman,  pp.  5-11; 
Cruise's  Dig.  (Greenleaf's  ed.)  tit.  38, 
c.  9,  §§  1-15,  and  notes ;  2d  Greenleaf's 
ed.  (1857)  &c.,  vol.  iii.  pp.  172-179,  and 
notes] . 


CHAP.  XV.]       ADMISSIBILITT   OF  PAROL  EVIDENCE. 


335 


admissible  of  all  the  circumstances  surrounding  the  author  of 
the  instrument. 1  In  the  simplest  case  that  can  be  put,  namely, 
that  of  an  instrument  appearing  on  the  face  of  it  to  be  perfectly 
intelligible,  inquiry  must  be  made  for  a  subject-matter  to  satisfy 
the  description.  If,  in  the  conveyance  of  an  estate,  it  is  desig- 
nated as  Blackacre,  parol  evidence  must  be  admitted  to  sho^ 
what  field  is  known  by  that  name.  Upon  the  same  principle, 
where  there  is  a  devise  of  an  estate  purchased  of  A,  or  of  a  farm 
in  the  occupation  of  B,  it  must  be  shown  by  extrinsic  evidence 
what  estate  it  was  that  was  purchased  of  A,  or  what  farm  was  in 
the  occupation  of  B,  before  it  can  be  known  what  is  devised.^ 
So,  if  a  contract  in  writing  is  made,  for  extending  the  time  of 
payment  of  "  certain  notes,"  held  by  one  party  against  the  other, 
parol  evidence  is  admissible  to  show  what  notes  were  so  held  and 
intended.^ 

§  288.  Illustrations.  It  is  only  in  this  mode  that  parol  evidence 
is  admissible  (as  is  sometimes,  but  not  very  accurately,  said)  to 
explain  tvritten  instruments;  namely,  by  showing  the  situation 
of  the  part}^  in  all  his  relations  to  persons  and  things  around  him, 
or,  as  elsewhere  expressed,  by  proof  of  the  surrounding  circum- 
stances. Thus,  if  the  language  of  the  instrument  is  applicable  to 
several  persons,  to  several  parcels  of  land,  to  several  species  of 
goods,  to  several  monuments  or  boimdaries,  to  several  writings;* 


i  The  propriety  of  admitting  such  evi- 
dence in  order  to  ascertain  the  meaning 
of  doubtful  words  or  expressions  in  a  will, 
is  expressly  conceded  by  Marshall,  C.  J., 
in  Smith  v.  Bell,  6  Peters,  75.  See  also 
Wooster  ?-.  Butler,  13  Conn.  317;  Bald- 
win V.  Carter,  17  Conn.  201 ;  Brown  v. 
Slater,  IG  Conn.  192;  Marshall's  Appeal, 
2  Barr,  388;  Stoner's  Appeal,  Id.  428; 
The  Great  Northern  Railw.  Co.  v.  Harri- 
son, 16  Jur.  .5n5;  14  Eng.  L.  &  Eq. 
195,  per  Parke,  B.  If  letters  are  offered 
against  a  party,  it  seems  he  may  read  his 
immediate  replies,  Roe  v.  Day,  7  C.  &  P. 
705 ;  and  may  prove  a  previous  conver- 
sation with  the  party  to  show  the  motive 
and  intention  in  writing  them,  Reay  v. 
Richardson,  2  C.  M.  &  R.  442;  supra, 
§  1S»7. 

^  Sanford  v.  Raikes,  1  Mer.  646,  653, 
per  Sir  W.  Grant ;  Doe  d.  Preedy  v. 
Horton,  4  Ad.  &  El.  76, 81,  per  Coleridge, 
J. ;  Doe  V.  Martin,  4  B.  &  Ad.  771,  per 
Parke,  J.  "  Whether  parcel,  or  not,  of 
the  thing  demised,  is  always  matter  of 
evidence."    Per  Buller,  J.,  in  Doe  v.  Burt, 


1  T.  R.  704,  R.  ace.  in  Doe  v.  E.  of  Jersey, 

3  B.  &  C.  870;  Doe  v.  Chichester,  4 
Dow's  P.  C.  65;  2  Stark.  Evid.  558-561 
[infra,  §  401,  and  notes.  So  a  deed  of 
land  known  by  the  name  of  the  "  mill 
spot,"  may  be  explained  by  parol  evi- 
dence of  what  "  the  mill  spot "  was  com- 
monly reputed,  at  and  before  the  time  of 
the  execution  of  the  deed,  to  include. 
Woods  V.  Sawin,  4  Gray,  322.  So  an 
agreement  in  writing  to  convey  "  the 
wharf  and  flats  occupied  by  A,  and  owned 
by  B,"  may  be  applied  to  the  subject-mat< 
ter  by  parol.  Gerrish  v.  Towne,  3  Gray, 
82,  88.  So,  "the  Schermerhorn  brick- 
yard." Seaman  v.  Hogeboom,  21  Barb. 
398.  See  also  Russel  v.  Werntz,  24  Penn. 
St.  337]. 

3  Bell  V.  Martin,  3  Harrison,  167. 

*  Miller  v.  Travers,  8  Bing.  244 ;  Sto- 
rer  v.  Freeman,  10  Mass.  435 ;  Waterman 
V.  Johnson,  13  Pick.  261  ;  Hodges  v.  Hors- 
fall,  1  Rus.  &  Mv.  116  ;  Dillon  v.  Harris, 

4  Bligh,  N.  s.  343',  356  ;  Parks  v.  The  Gen. 
Int.  Assur.  Co.,  5  Pick.  34  ;  Coit  v.  Stark- 
weather, 8  Conn.  289 ;  Blake  v.  Doherty, 


336 


LAW   OF  EVIDENCE. 


[PAKT  n. 


or  the  terms  be  vague  and  general,  or  have  divers  meanings,  as 
"  household  furniture,"  "  stock,"  "  freight,"  "  factory  prices,"  and 
the  like  ;  ^  or  in  a  will,  the  words  "  child,"  "  children,"  "  grand- 
children," "  son,"  "  family,"  or  "  nearest  relations,"  are  employed :  2 
in  all  these  and  the  like  cases,  parol  evidence  is  admissible  of  any 
extrinsic  circumstances,  tending  to  show  what  person  or  persons, 
or  what  things,  were  intended  by  the  party,  or  to  ascertain  his 
meaning  in  any  other  respect ;  ^  and  this,  without  any  infringe- 
ment of  the  rule,  which,  as  we  have  seen,  only  excludes  parol 
evidence  of  other  language,  declaring  his  meaning,  than  that 
which  is  contained  in  the  instrument  itself. 

§  289.  Wills.  In  regard  to  wills,  much  greater  latitude  was 
formerly  allowed,  in  the  admission  of  evidence  of  intention,  than 
is  warranted  by  the  later  cases.     The  modern  doctrine  on  this 


5  Wheaton,  359  ;  2  Stark.  Evid.  558-561 
[Storer  v.  Elliot  Fire  Insurance  Co.,  45 
Maine,  175;  Reamer  v.  Nesmith,  34  Cal. 
624.  And  see  post,  §  290 ;  Garwood  v. 
Garwood,  29  Cal.  514 ;  Holding  v.  Elliot, 
5H.  &N.  117]. 

1  Peisoh  V.  Dickson,  1  Mason,  10-12, 
per  Story,  J. ;  Pratt  v.  Jackson,  1  Bro. 
r.  C.  222  ;  Kelly  v.  Powlet,  Ambl.  610  ; 
Bunn  V.  Winthrop,  1  Johns.  Ch.  829 ;  Le 
Farrant  v.  Spencer,  1  Ves.  07 ;  Colpoys 
V.  Colpovs,  Jacob,  451 ;  Wigrani  on 
Wills,  p.  64;  Goblet  v.  Beechey,  3  Sim. 
24;  Barrett  v.  Allen,  1  Wilcox,  426; 
Avery  v.  Stewart,  2  Conn.  69 ;  Williams 
V.  Gilman,  3  Greenl.  276. 

2  Blackwell  (;.  Bull,  1  Keen,  176; 
Wylde's  case,  6  Co.  16  ;  Brown  v.  Thorn- 
dike,  16  Pick.  400 ;  Richardson  v.  Wat- 
son, 4  B.  &  Ad.  787.  See  also  Wigram  on 
Wills,  p.  58;  Doe  v.  Joinville,  ;>  East, 
172;  Green  v.  Howard,  1  Bro.  Ch.  32; 
Leigh  V.  Leigh,  15  Ves. 02;  Beachcroftu. 
Beachcroft,  1  Madd.  430.  [But  parol 
evidence  is  inadmissible  to  show  that 
"  children  "  includes  illegitimate  children, 
1  Bailey  (S.  C),  Eq.  351  ;  or  was  by  mis- 
take inserted  instead  of  sons,  Weather- 
head  V.  Sewell,  «  Humph.  (Tenn.)  272.] 

'  Goodings  i>.  Gooilings,  1  Ves.  231; 
Jeacock  v.  Falkeiior,  1  Bro.  Ch.  295 ; 
Fonnereau  v.  Povntz,  Id.  473  ;  Machcll  v. 
Winter,  3  Ves.  540.  641  ;  Lane  v.  Lord 
Stanhope,  6  T.  R.  345 ;  Doe  v.  Huthwaite, 
3  B.  &  Aid.  632;  Goodright  r.  Down- 
shire,  2  B.  &  P.  608,  per  Lord  Alvanley; 
Landsowne  v.  Landsowne,  2  Bligh,  60 ; 
Clementson  v.  Gandy,  1  Keen,  309; 
King  V.  Badelev,  3  My.  &  K.  417 
[Raffles  V.  Wichelhaus,  2  H.  &  C.  906; 
Blake  v.  Exch.  lus.  Co.,  12  Gray  (Mass.), 


265.  And  see  ante,  §  286].  So  parol 
evidence  is  admissible  to  show  what 
debt  was  referred  to,  in  a  letter  of  collat- 
eral guaranty.  Drummond  v.  Prestman, 
12  Wheat.  515.  So,  to  show  that  ad- 
vances, which  had  been  made,  were  in 
fact  made  upon  the  credit  of  a  particular 
letter  of  guaranty.  Douglass  i:  Reynolds, 
7  Pet.  113.  So,  to  identify  a  note,  which 
is  provided  for  in  an  assignment  of  the 
debtor's  property  for  the  benefit  of  his 
creditors,  but  which  is  misdescribed  in 
tlie  schedule  annexed  to  the  assignment. 
Pierce  v.  Parker,  4  Met.  80.  So,  to  show 
that  the  indorsement  of  a  note  was  made 
merely  for  collateral  security.  Dwigiit 
V.  Linton,  3  Rob.  (La.)  57.  See  also 
Bell  V.  Firemen's  Ins.  Co.,  Id.  423,  428, 
where  parol  evidence  was  admitted  of  an 
agreement  to  sell,  prior  to  the  deed  or  act 
of  sale.  So,  to  show  what  flats  were  occu- 
pied by  the  riparian  proprietor  as  appur- 
tenant to  his  ujiland  and  wharf,  and  passed 
with  tl:em  by  the  deed.  Treat  v.  Strick- 
land, 10  Shejjl.  234.  [Parol  evidence  m;iy 
be  introduced  to  show  what  persons  were 
meant  by  the  designation  of  "  Horace 
Gray  and  others,"  in  a  written  agreement, 
Herring  v.  Boston  Iron  Co.,  1  Gray,  134  ; 
and  to  show  the  circumstances  attending 
the  giving  a  written  certificate  of  compe- 
tency to  te;ich  school,  llojikins  v.  School 
District,  1  Williams, 2Hl.  So, also,  where 
a  note  had  on  it  the  following  iiulorse- 
ments:  "  Greenwood  &>.'iclK)ls  —  without 
recourse  —  Asa  Perk'v,"  the  first  indorsers 
were  nllowed  to  prove  that  the  words, 
"without  recourse,"  were  written  by  tlicm 
when  they  indorsed  the  note.  Fitchburg 
Bank  v.  Greenwood,  2  Allen,  434.  See 
also  Hey  i;.  Simpson,  22  How.  341.] 


CHAP.  XV.]       AD^nSSIBILITY  OF   PAROL  EVTDEXCE.  337 

subject  is  nearly  or  quite  identical  with  that  which  governs  in 
the  interpretation  of  other  instruments ;  and  is  best  stated  in  the 
language  of  Lord  Abinger's  own  lucid  exposition,  in  a  case  in  the 
Exchequer.^  "  The  object,"  he  remarked,  "  in  all  cases,  is  to  dis- 
cover the  intention  of  the  testator.  The  first  and  most  obvious 
mode  of  doing  this  is  to  read  his  will  as  he  has  written  it,  and 
collect  his  intention  from  his  words.  But  as  his  words  refer  to 
facts  and  circumstances,  respecting  his  property  and  his  family, 
and  others  whom  he  names  or  describes  in  his  will,  it  is  evident 
that  the  meaning  and  application  of  his  words  cannot  be  ascer- 
tained, without  evidence  of  all  those  facts  and  circumstances.^ 
To  understand  the  meaning  of  any  writer,  we  must  first  be  ap- 
prised of  the  persons  and  circumstances  that  are  the  subjects  of 
his  allusions  or  statements ;  and  if  these  are  not  fully  disclosed 
in  his  work,  we  must  look  for  illustration  to  the  history  of  the 
times  in  which  he  wrote,  and  to  the  works  of  contemporaneous 
authors.  All  the  facts  and  circumstances,  therefore,  respecting 
persons  or  property,  to  which  the  will  relates,  are  undoubtedly 
legitimate,  and  often  necessary  evidence,  to  enable  us  to  under 
stand  the  meaning  and  application  of  his  words.  Again,  the  tes 
tator  may  have  habitually  called  certain  persons  or  tilings  by 
peculiar  names,  by  which  they  were  not  commonly  known.  If 
these  names  should  occur  in  his  will,  they  could  only  be  explained 
and  construed  by  the  aid  of  evidence,  to  show  the  sense  in  which 
he  used  them,  in  like  manner  as  if  his  will  were  written  in  cipher, 
or  in  a  foreign  language.  The  habits  of  the  testator,  in  these 
particulars,  must  be  receivable  as  evidence,  to  explain  the  mean- 
ing of  his  will.     But  there  is  another  mode  of  obtaining  the 

1  Hiscocks  V.  Iliscocks,  5  M.  &  W.  the  father,  had  been  twice  married ;  by 
863,  367.  This  was  an  action  of  eject-  his  first  wife  he  had  Simon,  the  lessor 
ment,  broiight  on  tlie  demise  of  Simon  of  the  plaintiff,  his  eldest  son  ;  the  eldest 
Hiscocks  against  John  Hiscocks.  The  son  of  the  second  marriage  was  John 
question  turned  on  the  words  of  a  devise  Hiscocks,  the  defendant.  The  devise, 
in  the  will  of  Simon  Hiscocks,  the  grand-  therefore,  did  not,  both  by  name  and  de- 
father  of  the  lessor  of  the  plaintiff  and  of  scription,  apply  to  either  the  lessor  of 
the  defendant.  By  his  will,  Simcm  His-  the  plaintiff,  who  was  the  eldest  son,  but 
cocks,  after  devising  estates  to  his  son  whose  name  was  Simon,  nor  to  the  de- 
Simon  for  life,  and  from  and  after  his  fendant,  who,  thougli  his  name  was  John, 
death,  to  his  grandson,  Henrj'  Hiscocks,  was  not  the  eldest  son.  [But  parol  evi- 
in  tail  male,  and  making,  as  to  certain  dence  is  admissible  to  show  that  the  will 
other  estates,  an  exactly  similar  provision  was  to  take  effect  only  upon  a  certain 
in  favor  of  his  son  John  for  life;  then,  contingency.  Lister  r.  Smith, 8  Sw.  &Tr. 
after  his  death,  tlie  testator  devised  those  28'2.] 

estates  to  "  my  grandson,  John  Hiscocks,  ^  gpg   Crocker  v.  Crocker,  11   Pick. 

eldest  son  of  the  said  John  Hiscocks."  257 ;  Lamb  v.  Lamb,  Id.  375,  per  Shaw, 

It  was  on  this  devise  that  the  question  C.  J. ;    Bainbridge  v.    Wade,  20  Law  J. 

wholly  turned.    In  fiict,  John  Hiscocks,  n.  s.  Q.  B.  7 ;  1  Eng.  L.  &  Eq.  236. 

VOL.  I.  22 


338  LAW  OP  EVIDENCE.  [PAUT  H. 

intention  of  tlie  testator,  which  is  by  evidence  of  his  declarations, 
of  the  instructions  given  for  his  will,  and  other  circumstances  of 
the  like  nature,  which  are  not  adduced  for  explaining  the  words 
or  meaning  of  the  will,  but  either  to  supply  some  deficiency,  or 
remove  some  obscurity,  or  to  give  some  effect  to  expressions  that 
are  unmeaning  or  ambiguous.  Now,  there  is  but  one  case  in 
which  it  appears  to  us  that  this  sort  of  evidence  of  intention  can 
properly  be  admitted,  and  that  is,  where  the  meaning  of  the  testa- 
tor's words  is  neither  ambiguous  nor  obscure,  and  where  the 
devise  is,  on  the  face  of  it,  perfect  and  intelligible,  but,  from 
some  of  the  circumstances  admitted  in  proof,  an  ambiguity  arises 
as  to  which  of  the  two  or  more  things,  or  which  of  the  two  or 
more  persons  (each  answering  the  words  in  the  will),  the  testator 
intended  to  express.  Thus,  if  a  testator  devise  his  manor  of  S. 
to  A.  B.,  and  has  two  manors  of  North  S.  and  South  S.,  it  being 
clear  he  means  to  devise  one  only,  whereas  both  are  equally 
denoted  by  the  words  he  has  used,  in  that  case  there  is  what 
Lord  Bacon  calls  'an  equivocation,'  that  is,  the  words  equally 
apply  to  either  manor ;  and  evidence  of  previous  intention  may 
be  received  to  solve  this  latent  ambiguity,  for  the  intention  shows 
what  he  meant  to  do  ;  and  when  you  know  that,  you  immediately 
perceive  that  he  has  done  it,  by  the  general  words  he  has  used, 
which,  in  their  ordinary  sense,  may  properly  bear  that  construc- 
tion. It  appears  to  us  that,  in  all  other  cases,  parol  evidence  of 
what  was  the  testator's  intention  ought  to  be  excluded,  upon 
this  plain  ground,  that  his  will  ought  to  be  made  in  writing ;  and 
if  his  intention  cannot  be  made  to  appear  by  the  writing,  ex- 
plained by  circumstances,  there  is  no  will."  ^ 

1  The  Icarrxjfl  Chief  Baron's  subsequent  where  the  words  of  the  devise,  in  their 

commentary  on  tiie  opposing  decisions  primary  sense,  wlien  applied  to  tlie  cir- 

eeems,  in  a  great  measure,  to  have  ex-  cumstances  of  the  family  ami  the  prop- 

hausted  this  topic.     "  It  must  be  owned,  erty,  make  the  devise  insensible,  collat- 

however,"  said  he,  "  that  there  are  de-  eral  facts  may  be  resorted  to,  in  order  to 

cided  cases  which  are  not  to  be  recon-  show  that,  in  some  secondary  sense  of  the 

oiled  with  this  distinction,  in  a  manner  words,  —  and  one  in  which  the  testatot 

altofi^ether  satisfactory.     Some  of   them,  meant  to  use  them,  —  tlie  ilevise  may  havo> 

indeed,  exhibit  but  an  apparent  incon-  a  full  effect,     'i'hus  again,  in  Clieyney'e 

sistency.     Thus,  for  exam])le,  in  the  case  case,   and   in   Counden   v.   Clarke,   '  the 

of  Doe  V.  Huthwaite,  and   Hradsliaw  v.  averment   is   taken,'   in    order   to   show 

Bradshaw,  the  only  tiling  decided  was,  which  of  two  persons,  both  equally  de- 

that,  in  a   case  like   the   present,  some  scribed  within  the  words  of  the  will,  was 

parol  evidence  was  admissible.     There,  intended  by  the  testator  to  take  the  es- 

however,it  was  not  dccideil  that  evidence  tate  ;  and  the  late  cases  of  Doe  d.  Morgan 

of  the  testator's  intention  ought  to  be  v.   Morgan,  and  Doe  d.  Gord  i>.  Needs, 

received.     The  decisions,  when  duly  con-  both  in  this  court,  are  to  the  same  effect, 

eidered,  amount  to  no  more  than  this,  that  So,  in  the  case  of  Jonei  v.  Newman,  ac- 


x:UAP.  XV.]        AD:\nSSIBrLITY   of   PAPtOL  EVIDENCE. 


839 


§  290.  Same  subject.    From  the  above  case,  and  two  other  lead- 
ing modern  decisions,^  it  has  been  collected,^  (1)  that  where  the 


cording  to  the  view  the  court  took  of  the 
facts,  tlie  case  may  be  referred  to  the  same 
principles  as  the  former.  Tlie  court  seems 
to  have  thought  the  proof  equivalent  only 
to  proof  of  there  being  two  J.  C.'s  stran- 
gers to  each  other,  and  then  the  decision 
was  right,  it  being  a  mere  case  of  wliat 
Lord  Bacon  calls  equivocation.  The  cases 
of  Price  v.  Page,  Still  v.  Hoste,  and  Care- 
less v.  Careless,  do  not  materially  vary  in 
principle  from  those  last  cited.  They 
differ,  indeed,  in  this,  that  the  equivalent 
description  is  not  entirely  accurate ;  but 
the}''  agree  in  its  being  (although  inac- 
curate) equally  applicable  to  each  claim- 
ant; and  they  all  concur  in  this,  that  the 
inaccurate  part  of  the  description  is  either, 
as  in  Price  v.  Page,  a  mere  blank,  or,  as 
in  the  other  two  cases,  applicable  to  no 
person  at  all.  These,  therefore,  may 
fairly  be  classed  also  as  cases  of  equivoca- 
tion ;  and  in  that  case,  evidence  of  the 
intention  of  the  testator  seems  to  be  re- 
ceivable. But  there  are  other  cases  not 
80  easily  explained,  and  which  seem  at 
variance  with  the  true  principles  of  evi- 
dence. In  Selwood  v.  Mildmay,  evidence 
of  instructions  for  the  will  was  received. 
That  case  was  doubted  in  Miller  v.  Trav- 
ers ;  but,  perhaps,  having  been  put  by 
the  Master  of  the  Rolls  as  one  analogous 
to  that  of  the  devise  of  all  a  testator's 
freehold  houses  in  a  given  place,  where 
the  testator  had  only  leasehold  houses,  it 
may,  as  suggested  by  Lord  Chief  Justice 
Tindal,  in  Miller  v.  Travers,  be  consid- 
ered as  being  only  a  wrong  application  to 
the  facts  of  a  correct  principle  of  law. 
Again,  in  Hampshire  ;;.  Pierce,  Sir  John 
Strange  admitted  declarations  of  the  in- 
tentions of  the  testatrix  to  be  given  in 
evidence,  to  show  that  by  tlie  words, '  the 
four  children  of  my  niece  Bamfield,'  she 
meant  the  four  children  by  the  second 
marriage.  It  may  well  be  doubted  wheth- 
er this  was  right,  but  the   decision   on 


1  Miller  v.  Travers,  8  Bing.  244,  and 
Doe  d.  Gord  v.  Needs,  2  M.  &  W.  ,129. 
The  rule  on  this  subject  was  thus  stated 
by  Tindal,  C.  J. :  "  In  all  cases  where  a 
difficulty  arises  in  applying  the  words  of 
a  will  or  deed  to  the  subject-matter  of  a 
devise  or  grant,  the  difficulty  or  ambigu- 
ity, which  is  introduced  by  the  admission 
of  extrinsic  evidence,  maybe  rebutted  or 
removed  by  the  production  of  further  evi- 
dence upon  the  same  subject,  calculated 
to  explain  what  was  the  estate  or  subject- 


the  whole  case  was  undoubtedly  correct ; 
for  the  circumstances  of  the  family,  and 
their  ages,  which  no  doubt  were  admissi- 
ble, were  quite  sufficient  to  have  sus- 
tained the  judgment,  without  the  ques- 
tionable evidence.  And  it  may  be  further 
observed,  that  the  principle  with  which 
Sir  J.  Strange  is  said  to  have  commenced 
his  judgment  is  stated  in  terms  much  too 
large,  and  is  so  far  inconsistent  with  later 
authorities.  Beaumont  v.  Fell,  though 
somewhat  doubtful,  can  be  reconciled 
with  true  principles  upon  this  ground, 
that  there  was  no  such  person  as  Cath- 
erine Earnley,  and  that  the  testator  was 
accustomed  to  address  Gertrude  Yardley 
by  the  name  of  Gatty.  This,  and  other 
circumstances  of  the  like  nature,  which 
were  clearly  admissible,  may  perhaps  be 
considered  to  warrant  that  decision  ;  but 
there  the  evidence  of  the  testator's  dec- 
larations, as  to  his  intention  of  providing 
for  Gertrude  Yardley,  was  also  received  ; 
and  the  same  evidence  was  received  at 
Nisi  Prius,  in  Thomas  v.  Thomas,  and 
approved  on  a  motion  for  a  new  trial,  by 
the  dicta  of  Lord  Kenyon  and  Mr.  Justice 
Lawrence.  But  these  cases  seem  to  us  at 
variance  with  the  decision  in  Miller  v. 
Travers,  which  is  a  decision  entitled  to 
great  weight.  If  evidence  of  intention- 
could  be  allowed  for  the  purpose  of  show- 
ing, that  by  Catherine  Earnley  and  Mary 
Thomas,  the  respective  testators  meant 
Gertrude  Yardley  and  Elinor  Evans,  it 
might  surely  equally  be  adduced  to  prove, 
that  by  the  county  of  Limerick  a  testator 
meant  the  county  of  Clare.  Yet  this  was 
rejected,  and  we  think  rightly.  We  are 
prepared  on  this  point  (the  point  in  judg- 
ment in  the  case  of  Miller  v.  Travers)  to 
adhere  to  the  authority  of  that  case. 
Upon  the  whole,  then,  we  are  of  opinion 
that,  in  this  case,  there  must  be  a  new 
trial.  Where  the  description  is  partly 
true  as  to  both  claimants,  and  no  case  of 


matter  really  intended  to  be  granted  or 
devised."  Miller  v.  Travers,  supra,  ex- 
pressly recognized  and  approved  in  At- 
kinson V.  Cummins,  9  How.  S.  C.  479. 
The  same  rule  is  applied  to  the  monu- 
ments in  a  deed,  in  Clough  v.  Bowman, 
15  N.  H.  504. 

2  By  Vice-Chancellor  Wigram,  in  his 
Treatise  on  the  Interpretation  of  Wills, 
pi.  184,  188.  See  also  Gresley  on  Evid. 
203. 


840 


LAW   OF  EVIDENCE. 


[part  n. 


description  in  the  will,  of  the  person  or  thing  intended,  is  applica- 
ble with  legal  certainty  to  each  of  several  subjects^  extrinsic  evidence 
is  admissible  to  prove  which  of  such  subjects  was  intended  by 
the  testator.^  But  (2)  if  the  description  of  the  person  or  thing 
be  wholly  inapplicable  to  the  subject  intended,  or  said  to  be  in- 
tended by  it,  evidence  is  not  admissible  to  prove  whom  or  what 
the  testator  really  intended  to  describe.  His  declarations  of  in- 
tention, whether  made  before  or  after  the  making  of  the  will,  are 
alike  inadmissible. ^  Those  made  at  the  time  of  making  the  will, 
when  admitted  at  all,  are  admitted  under  the  general  rules  of 
evidence  applicable  alike  to  all  written  instruments.^ 

§  291.  Declarations  in  aid  of  interpretation.  But  declarations  of 
the  testator,  proving  or  tending  to  prove  a  material  fact  collateral 
to  the  question  of  intention,  where  such  fact  would  go  in  aid  of 
the  interpretation  of  the  testator's  words,  are,  on  the  principles 
already  stated,  admissible.  These  cases,  however,  will  be  found 
to  be  those  only  in  which  the  description  in  the  will  is  unam- 
biguous in  its  application  to  any  one  of  several  subjects.*     Thus, 


equivocation  arises,  what  is  to  be  done  is 
to  determine  wiietlier  tlie  description 
means  the  lessor  of  the  phvintiff  or  the 
defendant.  Tlie  description,  in  fact,  ap- 
plies partially  to  each,  and  it  is  not  easy 
to  see  how  the  ditBculty  can  be  solved. 
If  it  were  res  interim,  we  should  be  much 
disposed  to  hold  the  devise  void  for  un- 
certainty ;  but  the  cases  of  Doe  v.  Huth- 
waite,  Bradshaw  v.  Bradshaw,  and  others, 
are  authorities  against  this  conclusion. 
If,  therefore,  by  looking  at  the  surround- 
ing facts  to  be  found  by  the  jury,  the 
court  can  clearly  see,  witli  the  knowledge 
wliich  arises  from  those  facts  alone,  that 
the  testator  meant  either  the  lessor  of  the 
plaintiff  or  the  defendant,  it  may  so  de- 
cide, and  direct  the  jury  accordingly  ;  but 
we  think  that,  for  this  purpose,  they  can- 
not receive  declarations  of  the  testator  of 
what  he  intended  to  do  in  making  his 
will.  If  the  evidence  does  not  enable  the 
court  to  give  such  a  direction  to  the  jury, 
the  defendant  will  indeed  for  the  present 
succeeil  ;  but  the  claim  of  the  heir-at-law 
will  jirobabiy  prevail  ultimately,  on  the 
ground  that  the  devise  is  void  tor  uncer- 
tainty." 

1  [So  when  father  and  son,  both  of 
the  same  name,  die  intestate,  parol 
j)roof  is  admissible  to  show  to  which  let- 
ters of  administration  refer.     Moseley  v. 


Martin,  37  Ala.  216.1 
2  Wigram    on    Wills, 


pi.    104,   187; 


Brown  v.  Saltonstall,  3  Met.  423,  426; 
Trustees,  &c.  v.  Feaslee,  15  N.  H.  317, 
330. 

3  [Redfield  on  Wills,  §§  39-41.  In 
Kurtz  V.  liibner,  55  III.  514,  it  was  held, 
that  where  a  testator  in  unambiguous 
language  devised  a  lot  in  section  32  of 
the  town  of  Joliet,  parol  evidence  was 
inadmissible  to  show  that  he  meant  a  lot 
in  section  31.  The  correctness  of  the 
decision  is  disputed  with  a  good  deal  of 
vigor  in  a  note  to  the  case  (19  A.  L.  II. 
N.  s.  94),  by  Judge  Redfield  (sec  also 
note  to  same  case,  8  Am.  Rep.  609),  and 
defended  with  equal  vigor  by  Judge 
Caton  in  same  volume,  p.  353,  and  fol- 
lowed in  the  case  of  Fitzpatrick  v.  Fitz- 
patrick,  30  Iowa,  674,  —  a  case  which 
seems  to  have  been  carefully  considered, 
and  is  worthy  of  perusal.] 

«  Wigram  on  Wills,  pi.  104,  194,  195. 
This  learned  writer's  (jewral  Conclusions, 
as  the  result  of  the  whole  matter,  which 
he  has  so  ably  discussed  in  the  treatise 
just  cited,  are  "(1.)  That  the  evidence 
of  material  facts  is,  in  all  cases,  ad- 
missible in  aid  of  the  exposition  of  a 
will.  (2.)  That  tiie  legitimate  purposes 
to  which  —  in  siirrcssioii  —  such  evidence 
is  applicable,  are  two;  namely,  ./ins/,  to 
determine  whether  the  words  of  the  will, 
with  reference  to  the  facts,  admit  of  being 
construed  in  their  primary  sense ;  and, 
secondli],  if  the  facts  of  the  case  exclude  the 


CHAP.  XV.]       ADMISSIBILITY   OF  PAROL  EVIDENCE. 


341 


■where  lands  were  devised  to  John  Cluer  of  Calcot,  and  there 
were  father  and  son  of  that  name,  parol  evidence  of  the  testator's 
declarations,  that  he  intended  to  leave  them  to  the  son,  was  held 
admissible.^  So,  where  a  legacy  was  given  to  "  the  four  childi-en 
of  A,"  who  had  six  children,  two  by  a  first,  and  four  by  a  second, 
marriage,  parol  evidence  of  declarations  by  the  testatrix,  that  she 
meant  the  latter  four,  was  held  admissible.^  So,  where  the  devise 
was,  *•'  to  my  granddaughter,  Mary  Thomas  of  Llechloyd  in  Mer- 
thyr  parish,"  and  the  testator  had  a  granddaughter  named  Elinor 
Evans  in  that  parish,  and  a  great-granddaughter,  Mary  Thomas, 
in  the  parish  of  Llangain ;  parol  evidence  of  the  testator's  dec- 
larations at  the  time  of  making  the  will  was  received,  to  show 
which  was  intended.^  So,  where  a  legacy  was  given  to  Catherine 
Earnley,  and  there  was  no  person  of  that  name  ;  but  the  legacy 
was  claimed  by  Gertrude  Yardley ;  parol  proof  was  received, 
that  the  testator's  voice,  when  the  scrivener  wrote  the  will,  was 
very  low,  that  he  usually  called  the  legatee  Gatty,  and  had 
declared  that  he  would  do  well  by  her  in  his  will ;  and  thereupon 
the  legacy  was  awarded  to  her.*     So,  also,  where  a  devise  was  to 


primary  meaning  of  the  words,  to  deter- 
mine wiiether  the  intention  of  the  testator 
is  certain  in  any  other  sense,  of  wliieh  tlie 
words,  with  reference  to  the  facts,  are 
capable.  And,  (3.)  That  intention  can- 
not be  averred  in  support  of  a  will,  except 
in  tlie  special  cases,  which  are  stated 
under  tlie  Seventh  Proposition "  (see 
supra,  §  287,  n.) ;  namely,  cases  "  where 
the  object  of  a  testator's  bounty,  or  the 
subject  of  disposition  (i.  e.  the  person  or 
tliiiif/  intended),  is  described  in  terms 
which  are  applicable  indifferently  to  more 
than  one  person  or  thing.'"  Id.  pi.  211-214. 
And  he  insists,  "  (1.)  That  the  judgment 
of  a  court,  in  expounding  a  will,  siiould 
be  simply  declaratory  of  what  is  in  the 
instrument;  and,  (2.)  That  every  claim- 
ant under  a  will  has  a  right  to  require 
that  a  court  of  construction,  in  the  exe- 
cution of  its  office,  sliall,  by  means  of 
extrinsic  evidence,  place  itself  in  the 
situation  of  the  testator,  the  meaning  of 
whose  language  it  is  called  upon  to  de- 
clare." Id.  pi.  5,  96,  21.5 ;  Doe  v.  Martin, 
1  N.  &  M.  524,  per  Parke,  J. ;  s.  c.  4  B. 
&  Ad.  771;  Guy  i'.  Sliarp,  1  M.  &  K.  602, 
per  Ld.  Brougham,  C.  See  also  Boys  v. 
Williams,  2  Russ.  &  M.  689,  where  parol 
evidence  of  the  testator's  property  and 
situation  was  held  admissible  to  deter- 
mine whether  a  bequest  of  stock  was  in- 
tended as  a  specific  or  a  pecuniary  legacy. 


These  rules  apply  with  equal  force  to  the 
interpretation  of  every  other  private  in- 
strument. 

1  Jones  V.  Newman,  1  W.  Bl.  60.  See 
also  Doe  v.  Benyon,  4  P.  &  D.  193;  Doe 
V.  Allen,  4  P.  &  D.  220.  But  where  the 
testator  devised  to  his  "grandson  Rufus,"' 
and  there  were  two  of  that  name,  the  one 
legitimate,  who  lived  in  a  foreign  laml,  and 
whom  he  had  seen  only  once  and  when  a 
child,  and  the  other  illegitimate,  living 
with  him,  and  whom  he  had  brouglit  up 
and  educated;  it  was  held,  that  the  words 
were  legally  applicable  only  to  the  legiti- 
mate grandson,  and  that  parol  evidence  to 
the  contrarv  was  not  admissible.  Doe  v. 
Taylor,  1  Allen,  425  (N.  Bruns.),  Street/ 
J.,  dissentiente. 

2  Hampshire  v.  Pierce,  2  Ves.  216. 
8  Thomas  v.  Thomas,  6  T.  K.  671. 

*  Beaumont  v.  Fell,  2  P.  Wms.  141. 
The  propriety  of  receiving  evidence  of 
the  testator's  declarations,  in  either  of  the 
two  last-cited  cases,  was,  as  we  have  just 
seen  (supra,  §  289,  n.),  strongly  ques- 
tioned by  Lord  Abinger  (in  Iliscocks  v. 
Hiscocks,  5  Mees.  &  Welsh.  371),  who 
thought  them  at  variance,  in  this  partic- 
ular, with  the  decision  in  Miller  v.  Trav- 
erse, 8  Bing.  244,  which,  he  observed, 
was  a  decision  entitled  to  great  weight. 
But  upon  the  case  of  Beaumont  v.  Fell,  it 
has  been  correctly  remarked,  that  "  the 


342 


LAW   OF   EVIDENCE. 


[PAET  n. 


"  the  second  son  of  Charles  "Weld,  of  Lulworth,  Esq.,"  and  there 
was  no  person  of  that  name,  but  the  testator  had  two  relatives 
there,  bearmg  the  names  of  Joseph  Weld,  and  Edward-Joseph 
Weld,  it  was  held,  upon  the  context  of  the  will,  and  upon  ex- 
trinsic evidence,  that  the  second  son  of  Joseph  Weld  was  the 
person  intended.  So,  where  a  bequest  was  to  John  Newbolt, 
second  son  of  William-Strangways  Newbolt,  Vicar  of  Somerton  ; 
and  it  appeared  aliunde  that  the  name  of  the  vicar  was  William- 
Robert  Newbolt,  that  his  second  son  was  Henry-Robert,  and  that 
his  third  son  was  John-Pryce  ;  it  was  held  that  John-Pryce  was 
entitled  to  the  legacy.^  So,  where  the  testatrix  gave  legacies  to 
Mrs.  and  Miss  B.  of  H.,  widow  and  daughter  of  the  Rev.  Mr.  B. ; 
upon  the  legacies  being  claimed  by  ]\Irs.  and  Miss  W.,  widow 
and  daughter  of  the  late  Rev.  Mr.  W.  of  H.,  it  was  held,  that  they 
were  entitled ;  it  appearing  aliunde  that  there  were  no  persons 
literally  answering  the  description  in  the  will,  at  its  date ;  but 
that  the  claimants  were  a  daughter  and  granddaughter  of  the 
late  Rev.  Mr.  B.,  with  all  of  whom  the  testatrix  had  been  inti- 
mately acquainted,  and  that  she  was  accustomed  to  call  the 
claimant  by  the  maiden  name  of  Mi-s.  W.'-^  The  general  princi- 
ple in  all  these  cases  is  this,  that  if  there  be  a  mistake  in  the 
name  of  the  devisee,  but  a  right  description  of  him,  the  court 
may  act  upon  such  right  description ;  ^  and  that  if  two  persons 


evidence,  which  is  confessedly  admissible, 
would,  in  conjunction  witli  the  will  itself, 
ehow  that  there  was  a  devise  to  Catherine 
Earnley,  and  that  no  such  person  existed, 
but  that  tliere  was  a  claimant  named  Ger- 
trude Yardley,  whom  the  testator  usually 
called  Gatty.  In  this  state  of  the  case, 
the  question  would  be,  whether,  upon  the 
J)rinciple  of  falsa  demonstratio  von  nocet, 
tlie  surname  of  Earnley  being  rejected, 
the  Christian  name,  if  correct,  would  itself 
be  a  sufficient  indication  of  the  devisee; 
and  if  so,  wliether  Gatty  satisfied  that 
imhcation.  Both  these  questions  leave 
untouched  the  general  question  of  the 
admissibility  of  evidence,  to  show  the  pro- 
cess by  which  Gatty  passed  into  Katty, 
and  from  Katty  to  Catherine."  See  Phil. 
&  Am.  on  Evid.  p.  720,  n.  (2).  It  is  not 
easy,  however,  to  perceive  why  extrinsic 
evidence  of  the  testator's  declared  inten- 
tions of  beneficence  towards  an  indi- 
ridual  is  not  as  admissible,  as  evidence  is, 
that  he  used  to  speak  of  him  or  address 
him  as  his  son,  or  godson,  or  adoi)ted 
child;  when  the  object  in  both  cases  is  to 


ascertain  which  of  several  demonstra- 
tions is  to  be  retained  as  true,  and  which 
rejected  as  false.  Now  tlie  evidence  of 
such  declarations,  in  Beaumont  v.  Fell, 
went  to  show  that  "Earnley"  was  to  be 
TQJected-ds  falsa  demonstratio;  and  the  other 
evidence  went  to  designate  the  indivi<lual 
intended  by  the  word  "  Catherine  ;  "  not 
by  adding  words  to  the  will,  but  by  show- 
ing what  the  word  used  meant.  See  infra, 
§  800;  Wigram  on  the  Interpretation  of 
Wills,  pp.  128,  129,  pi.  \m.  See  also 
Bavlis  V.  The  Attorney-General,  2  Atk. 
239 ;  Abbott  v.  Massie,  3  Ves.  148 ;  Doe  d. 
Oxenden  v.  Chichester,  4  Dow's  P.  C.  66, 
93;  Duke  of  Dorset  v.  Lord  Haward^-n, 
3  Curt.  80;  Trustees,  &c.  i;.  Peaslee,  15 
N.  H.  317  ;  Doe  v.  Hubbard,  15  Ad.  &  El. 
N.  8.  248,  per  Ld.  Campbell. 

1  Newbolt  V.  Prvce,  14  Sim.  354. 

'i  Lee  I'.  Pain,  4' Hare,  251 ;  9  Jur.  24. 

*  On  the  other  hand,  if  the  name  is 
right,  but  tiio  description  is  wrong,  the 
name  will  be  regarded  as  the  best  evi- 
dence of  the  testator's  intention.  Thus, 
where  the  testator  had  married  two  wives, 


CHAP.  XV.]       ADMISSIBILITY  OF  PAEOL  EVIDENCE.  843 

equally  answer  the  same  name  or  description,  the  court  may 
determine,  from  the  rest  of  the  will  and  the  surrounding  circum- 
stances, to  wliich  of  them  the  will  applies.^ 

r  §  292.  Usage.  It  is  fui'ther  to  be  observed,  that  the  rule  under 
consideration,  which  forbids  the  admission  of  parol  evidence  to 
contradict  or  vary  a  written  contract,  is  not  infringed  by  any 
evidence  of  knotvn  and  established  usaye  respecting  the  subject  to 
which  the  contract  relates.  To  such  usage,  as  well  as  to  the  lex 
loci,  the  parties  may  be  supposed  to  refer,  just  as  they  are  pre- 
sumed to  employ  words  in  their  usual  and  ordinary  signification ; 
and  accordingly  the  rule  is  in  both  cases  the  same.  Proof  of 
usage  is  admitted,  either  to  interpret  the  meaning  of  the  language 
of  the  contract,  or  to  ascertain  the  nature  and  extent  of  the  con- 
tract, in  the  absence  of  express  stipulations,  and  where  the  mean- 
ing is  equivocal  and  obscure .^  Thus,  upon  a  contract  for  a  year's 
service,  as  it  does  not  in  terms  bind  the  party  for  every  day  in 
the  year,  parol  evidence  is  admissible  to  show  a  usage  for  ser- 
vants to  have  certain  holidays  for  themselves.^  So,  where  the 
contract  was  for  performance  as  an  actor  in  a  theatre,  for  three 
years,  at  a  certain  sum  per  week,  parol  evidence  was  held  admissi- 
ble to  show  that,  according  to  uniform  theatrical  usage,  the  actor 
was  to  be  paid  only  during  the  theatrical  season  ;  namely,  duiing 
the  time  while  the  theatre  was  open  for  performance,  in  each  of 
those  years.*  So,  where  a  ship  is  warranted  "  to  depart  with 
convoy,"  parol  evidence  is  admissible  to  show  at  what  place  con- 
voy for  such  a  voyage  is  usually  taken ;  and  to  that  place  the 
parties  are  presumed  to  refer.^  So,  where  one  of  the  subjects  of 
a  charter-party  was  "  cotton  in  bales,"  parol  evidence  of  the  mer- 
cantile use  and  meaning  of  this  term  was  held  admissible.^     So, 

Mary  and  Caroline,  successively,  both  of  notes.      The  usage  must  be  general  in 

whom  survived  him ;  and  he  devised  an  the  whole   city  or   place,  or   among  all 

estate  to  his  "  dear  wife  Caroline,"  the  persons  in  the  trade,  and  not  the  usage 

latter  was  held  entitled  to  take,  though  of  a  particular  class  only,  or  the  course 

she  was  not  the  true  wife.   Doe  w.  Roast,  of  practice  in  a  particular  office  or  bank, 

12  Jur.  99.  to  whom  or  which  the  party  is  a  stran- 

1  Blundell  v.  Gladstone,  1  Phil.  Ch.  ger.     Gabay  v.  Lloyd,  3  B.  &  C.  793. 
279,  288,  per  Patteson,  J.  3  Rgg.  v.  Stoke  upon  Trent,  5  Ad.  & 

2  2  Poth.  on  Obi.  by  Evans,  App.  No.  El.  n.  s.  303. 

xvi.  p.  187  ;  2  Suran.  569,  per  Story,  J. ;  *  Grant  v.  Maddox,  15  M.  &  W.  737. 

11  Sim.  626,  per  Parke,  B. ;  4  East,  135,  6  Lethulier's  case,  2  Salk.  443. 

per  Ld.  Ellenborough ;  Cutter  v.  Powell,  6  Taylor  v.  Briggs,  2  C.  &  P.  525  [Gor- 

6  T.  K.  320;  Vallance  v.  Dewar,  1  Campb.  rissen  v.  Perrin,  27  L.  J.  C.  P.  29.   Where 

503;  Noble  v.  Kennoway,  2  Doug.  510;  part  of  a  memorandum  of  sale  was  as 

Bottomley  v.  Forbes,  5  Bing.  N.  C.  121 ;  follows,  "  Bought  150  tons  madder,  12^, 

8  Scott,  866 ;  Ellis  v.  Thompson,  3  M.  &  6ms.,"  it   may   be    shown    that,   among 

W.  445 ;   -post,  vol.  ii.  §§  251,  252,  and  dealers  in  madder,  in  such  a  contract  12| 


344 


LAW  OF  EVIDENCE. 


[part  n. 


where  a  promissory  note  or  bill  is  payable  with  grace,  parol  evi- 
dence of  the  known  and  established  usage  of  the  bank  at  which 
it  is  payable  is  admissible  to  show  on  what  day  the  grace  expired.^ 
But  though  usage  may  be  admissible  to  explain  what  is  doubtful, 
it  is  not  admissible  to  contradict  what  is  plain.^  Thus,  where  a 
policy  was  made  in  the  usual  form,  upon  the  ship,  her  tackle, 
apparel,  boats,  &c.,  evidence  of  usage,  that  the  underwriters 
never  pay  for  the  loss  of  boats  slung  upon  the  quarter,  outside  of 
the  ship,  was  held  inadmissible.^  So,  also,  in  a  libel  in  rem  upon 
a  bill  of  lading,  containing  the  usual  clause,  "  the  dangers  of  the 
seas  only  excepted,"  where  it  was  articulated  in  the  answer,  that 
there  was  an  established  usage,  in  the  trade  in  question,  that  the 
ship-owners  should  see  the  merchandise  properly  secured  and 
stowed,  and  that  this  being  done,  they  should  not  be  liable  for 
any  damages  not  occasioned  by  their  own  neglect ;  it  was  held, 
that  this  article  was  incompetent,  in  point  of  law,  to  be  admitted 
to  proof.* 


means  12J  cents  per  pound,  and  expresses 
the  price  of  the  madder.  Dana  v.  Fielder, 
2  Kernau,  40;  Brown  v.  Brooks,  25  Penn. 
St.  210;  Allan  v.  Comstock,  17  Geo.  554; 
Brown  v.  Byrne,  26  Eng.  Law  &  Eq.  247. 
And  a  similar  rule  was  applied  to  deter- 
mining the  mode  of  measuring  the  amount 
of  freight  in  a  bill  of  lading.  Russian 
Steam  Nav.  Co.  v.  Silva,  13  C.  B.  n.  8. 
610]. 

1  Renncr  v.  Bank  of  Columbia,  9 
Wheat.  581,  where  tlie  decisions  to  this 
point  are  reviewed  by  Mr.  Justice  Thomp- 
son. 

2  2  Cr.  &  J.  249,  250,  per  Ld.  Lynd- 
hurst  [Oelricks  v.  Ford,  23  How.  49] . 

8  Blackett  v.  The  Royal  E.xch.  Assur- 
ance Co.,  2  Cr.  &  J.  244.  So,  where  the 
written  contract  was  for  "prime  singed 
bacon, "and  evidence  was  offered  to  prove, 
that  by  the  usage  of  tlie  trade  a  certain 
latitude  of  deterioration,  called  average 
taint,  was  alhnved  to  subsist,  before  tlie 
bacon  ceases  to  answer  the  description  of 
prime  bacon  ;  it  was  held  inadmissible. 
Yates  V.  I'ym,  0  Taunt.  44(1.  So,  also, 
parol  evidence  has  been  held  inadmissible 
to  prove,  that  by  the  words,  "  glass  ware 
in  casks,"  in  the  memorandum  of  e.x- 
cepteil  articles  in  a  fire  policy,  according 
to  the  coutmon  understanding  and  usage 
of  insurers  and  insured,  were  meant  such 
ware  in  open  casks  only.  Benil  i'.  The 
Georgia  Ins.  Co.,  Sup.  Court,  New  York, 
1842.  But  see  Gray  v.  Harper,  1  Story, 
574  (infra,  §  295,  n.)   [Whitmore  v.  The 


South  Boston  ^ron  Co.,  2  Allen,  52. 
Where,  in  an  action  against  warehouse- 
men for  the  non-delivery  of  property 
bailed  to  them,  the  defence  was,  that  the 
property  had  been  fraudulently  taken 
from  their  custody,  without  any  negli- 
gence on  their  part,  and  the  plaintiff  did 
not  claim  that  the  property  had  in  fact 
been  delivered  to  any  person,  evidence 
of  the  usage  of  other  warehousemen  of 
taking  receipts  from  persons  to  whom 
property  was  delivered  is  inadmissible. 
Lichtenhein  v.  Boston  &  P.  R.  R.  Co.,  11 
Cush.  70,  72.  Had  there  been  an  actual 
delivery  to  a  third  person  by  the  ware- 
houseman, (juwre  how  far  such  evidence 
of  general  usage  might  not  be  admissible 
to  show  negligence.     lb.]. 

*  The  schooner  "  Reeside,"  2  Sumn. 
507.  In  this  case  the  doctrine  on  this 
subject  was  thus  briefly  but  energetically 
expounded  and  limited  by  Mr.  Justice 
Story :  "  I  own  myself,"  said  he,  "  no 
friend  to  the  almost  indiscriminate  habit, 
of  late  years,  of  setting  up  })articular 
usages  or  customs  in  almost  all  kinds  of 
business  and  trade,  to  cjontrol,  vary,  or 
annul  the  general  liabilities  of  parties 
under  the  common  law,  as  well  as  under 
the  commercial  law.  It  has  long  ap- 
peared to  me,  that  tiiere  is  no  small  dan- 
ger in  admitting  such  loose  and  in(;oncIu- 
sive  usages  and  customs,  often  imknown 
to  particular  parties,  and  always  liable 
to  great  misunderstandings  and  misinter- 
pretations and  abuses,  to  outweigh  the 


CHAP.  XV.]       ADSnSSIBILITY  OF  PAROL  EVIDENCE. 


845 


§  293.  Usage  in  cases  of  statutes,  charters,  and  deeds.  The  rea- 
sons wliich  warrant  the  admission  of  evidence  of  usage  in  any 
case,  apply  equally,  whether  it  be  required  to  aid  the  interpreta- 
lion  of  a  statute,  a  public  charter,  or  a  private  deed  ;  and  whether 
the  usage  be  still  existing  or  not,  if  it  were  contemporaneous  with 
the  instrument.^  And  where  the  language  of  a  deed  is  doubtful 
in  the  description  of  the  land  conveyed,  parol  evidence  of  the 
practical  interpretation,  by  the  acts  of  the  parties,  is  admissible  to, 
remove  the  doubt.^  So,  evidence  of  former  transactions  between 
the  same  parties  has  been  held  admissible  to  explain  the  meaning 
of  terms  in  a  written  contract,  respecting  subsequent  transactions 
of  the  same  character.^ 

§  294.   To  annex  incidents.     Upon   the   same   principle,   parol 


well-known  and  well-settled  principles  of 
law.  And  I  rejoice  to  find,  that,  of  late 
years,  the  courts  of  law,  both  in  England 
and  in  America,  have  been  disposed  to 
narrow  the  limits  of  the  operation  of 
such  usages  and  customs,  and  to  discoun- 
tenance any  farther  extension  of  them. 
The  true  and  appropriate  ofiice  of  a 
usage  or  custom  is,  to  interpret  the 
otherwise  indeterminate  intentions  of 
parties,  and  to  ascertain  the  nature  and 
extent  of  their  contracts,  arising,  not 
from  express  stipulations,  but  from  mere 
implications  and  presumptions,  and  acts 
of  a  doubtful  or  equivocal  character.  It 
may  also  be  admitted  to  ascertain  the 
true  meaning  of  a  particular  word,  or  of 
particular  words,  in  a  given  instrument, 
when  the  word  or  words  have  various 
senses,  some  common,  some  qualified,  and 
some  technical,  according  to  the  subject- 
matter  to  which  they  are  applied.  But  I 
apprehend,  that  it  never  can  be  proper  to 
resort  to  any  usage  or  custom,  to  control 
or  vary  the  positive  stipulations  in  a 
written  contract,  and,  a  fortiori,  not  in 
order  to  contradict  them.  Au  express 
contract  of  the  parties  is  always  admissi- 
ble to  supersede,  or  vary,  or  control  a 
usage  or  custom  ;  for  the  latter  may 
always  be  waived  at  the  will  of  the  par- 
ties. But  a  written  and  express  contract 
cannot  be  controlled,  or  varied,  or  con- 
tradicted by  a  usage  or  custom  ;  for  that 
would  not  only  be  to  admit  parol  evi- 
dence to  control,  vary,  or  contradict 
written  contracts,  but  it  would  be  to 
allow  mere  presumptions  and  implica- 
tions, properly  arising  in  the  absence  of 
any  positive  expressions  of  intention,  to 
control,  vary,  or  contradict  the  most  for- 
mal and  deliberate  written  declarations  of 
the  parties."     See  also  Taylor  v.  Briggs, 


2  C.  &  P.  525;  Smith  v.  Wilson,  3  B.  & 
Ad.  728;  2  Stark.  Evid.  565;  Park  on 
Ins.  c.  2,  pp.  30-60;  post,  vol.  ii.  [7th  ed.] 
§  251;  Hone  v.  Mutual  Safety  Ins.  Co., 

1  Sandf.  S.  C.  137  [Ware  v.  Hayward 
Rubber  Co.,  3  Allen,  84 ;  Symonds  v. 
Llovd,  6  Com.  B.  n.  s.  691;  Winn  v. 
Chamberlain,  32  Vt.  318;  Beacon  Life 
&  Fire  Assurance  Co.  v.  Gibb,  1  Moore 
P.  C.  C.  N.  s.  73;  9  Jur.  n.  s.  185]. 

1  Withnell  v.  Gartham,  6  T.  R.  388 ; 
Stammers  v.  Dixon,  7  East,  200 ;  Wadiey 
V.  Bayliss,  5  Taunt.  752 ;  2  Inst.  282  ; 
Stradling  v.  Morgan,  Plowd.  205,  ad.  calc; 
Havdon's  case,  3  Co.  7 ;  Wells  v.  Porter, 

2  Bing.  N.  C.  729,  per  Tindal,  C.  J. ; 
Duke  of  Devonshire  v.  Lodge,  7  B.  &  C. 
36,  39,  40;  Chad  v.  Tilsed,  2  B.  &  B.  403; 
Attorney-General  v.  Boston,  9  Jur.  838  ; 
8.  c.  2  Eq.  Rep.  107;  Farrar  v.  Stackpole, 
6  Greenl.  154 ;  Meriara  v.  Harsen,  2  Barb. 
Ch.  232. 

2  Stone  V.  Clark,  1  Metcalf ,  378 ;  Liv- 
ingston V.  Tenbroeck,  16  Johns.  14,  22, 
23;  Cook  v.  Booth,  Cowp.  419.  Tiiis  last 
case  has  been  repeatedly  disapproved  of, 
and  may  be  considered  as  overruled  ; 
not,  however,  in  the  principle  it  asserts, 
but  in  the  application  of  the  principle  to 
that  case.  See  Phil.  &  Am  on  Evid, 
747,  n.  (1) ;  1  Sugd.  Vend.  (6th  ed.)  210, 
*178;  Cambridge  v.  Lexington,  17  Pick 
222  ;  Choate  v.  Burnham,  7  Pick.  274 ; 
Allen  I'.  Kingsbury,  16  Pick.  239 ;  4 
Cruise's  Dig.  tit.  32,  c.  20,  §  23,  n.  (Green- 
leaf's  ed.)  [2d  ed.  1857,  vol.  ii.  p.  598, 
and  n.l. 

8  Bourne  v.  Gatliff,  11  CI.  &  Fin.  45, 
69,  70.  [See  Bliven  v.  New  England 
Screw  Co.,  23  How.  420;  Falkner  v. 
Earle,  3  B.  &  S.  360;  s.  c.  32  L.  J.  Q.  B 
124.] 


346  LAW   OF   EVIDENCE.  [PART  H. 

evidence  of  usage  or  custom  is  admissible  "  to  annex  inciden^s,''^  aa 
it  is  termed  ;  that  is,  to  show  what  things  are  customarily  treated 
as  incidental  and  accessorial  to  the  principal  thing,  which  is  the 
subject  of  the  contract,  or  to  which  the  instrument  relates. 
Thus,  it  may  be  shown  by  parol  that  a  heriot  is  due  by  custom, 
on  the  death  of  a  tenant  for  life,  though  it  is  not  exj^ressed  in  the 
lease.^  So,  a  lessee  by  a  deed  may  show  that,  by  the  custom  of 
the  country,  he  is  entitled  to  an  away-going  crop,  though  no  such 
right  is  reserved  in  the  deed.^  So,  in  an  action  for  the  price  of 
tobacco  sold,  evidence  was  held  admissible  to  show  that,  by  the 
usage  of  the  trade,  all  sales  were  by  sample,  though  not  so  ex- 
pressed in  the  bought  and  sold  notes.^  This  evidence  is  admitted 
on  the  princij)le,  that  the  parties  did  not  intend  to  express  in 
writing  the  whole  of  the  contract  by  which  they  were  to  be 
bound,  but  only  to  make  their  contract  with  reference  to  the 
known  and  established  usages  and  customs  relating  to  the  sub- 
ject-matter. But,  in  all  cases  of  this  sort,  the  rule  for  admitting 
the  evidence  of  usage  or  custom  must  be  taken  with  this  qualifi- 
cation, that  the  evidence  be  not  repugnant  to,  or  inconsistent 
with,  the  contract ;  for  otherwise  it  would  not  go  to  interpret  and 
explain,  but  to  contradict,  that  which  is  written.^  This  rule  does 
not  add  new  terms  to  the  contract,  which,  as  has  already  been 
shown,^  cannot  be  done  ;  but  it  shows  the  full  extent  and  mean- 
ing of  those  which  are  contained  in  the  instrument. 

§  295.  Usage  to  explain  particular  words.  But,  in  resorting  to 
usage  for  the  meaning  of  particular  ivords  in  a  contract,  a  distinc- 
tion is  to  be  observed  between  local  and  technical  words,  and 
other  words.  In  regard  to  words  which  are  purely  technical,  or 
local,  that  is,  words  which  are  not  of  universal  use,  but  are  famil- 
iarly known  and  employed,  either  in  a  particular  district,  or  in  a 
particular  science  or  trade,  parol  evidence  is  always  receivable,  to 
define  and  explain  their  meaning  among  those  who  use  them. 
And  the  principle  and  practice  are  the  same  in  regard  to  words 
which  have  two  meanings,  the  one  common  and  universal,  and 

1  White  »•.  Saver,  Palm.  211.  etass  v.  Stabler,  33  Pa.  St.  251;  Harbold 

2  Wi<jgk>sworth  v.  Dallison,  1  Doug.     v.  Kustcr,  44  Pa.  St.  392.] 

201  ;  1  Smith's  Lead.  Cas.  300;  1  Bligh,  s  Syers  v.  Jonas,  2  Kxch.  111. 

287  ;    Senior  v.  Arniytagc,  Holt's  N.   P.  *  Yeates  v.  Pirn,  Holt's  N.  P.  Cas.  95; 

Cas.  1!»7  ;  Hutton  v.  Warren,  1  M.  &  W.  HoUling    v.    Pigott,    7    Hing.   4(i5,    474  ; 

460.     [And  though  there  is  no  exception  Blackett  v.  The  Koyal  Exch.  Assur.  Co., 

in  the  deed,  it  may  be  shown  by  parol  2  C.  &  J.  244 ;  Caine  v.  Uorsefall,  2  C.  & 

that  the   growing  crops  were  reserved.  K.  349. 

Merrill  v.  Blodgett,  34  Vt.  480;  Backen-  «  Supra,  §  281. 


CHAP.  XV.]       AD^nSSIBILITY  OF  PAROL  EVIDENCE. 


347 


tHe  other  technical,  peculiar,  or  local ;  parol  evidence  being  ad- 
missible of  facts  tending  to  show  that  tlie  words  were  used  in  the 
latter  sense,  and  to  ascertain  their  technical  or  local  meaning. 
The  same  principle  is  also  applied  in  regard  to  words  and  phrases 
used  in  a  peculiar  sense  by  members  of  a  particular  religious 
sect.^     But  beyond  this  the  principle  does  not  extend.     If,  there- 


1  The  doctrine  on  this  subject  has  re- 
cently been  very  fully  reviewed,  in  the 
case  of  Lady  Ilewley's  charities.  This 
lady,  who  was  a  non-conformist,  in  the 
year  1704,  conveyed  certain  estates  by 
deeds,  in  trust,  for  the  benefit  of  "  poor 
and  godly  preachers  of  Christ's  Holy  Gos- 
pel," and  their  widows,  and  "  for  the  en- 
couraging an<]  promoting  of  the  preaching 
of  Christ's  Holy  Gospel,"  &c. ;  with  the 
usual  provision  for  preserving  a  perpet- 
ual succession  of  trustees.  Afterwards, 
in  1707,  by  other  deeds  to  the  same  trus- 
tees, she  made  provision  for  the  erection 
and  support  of  a  hospital  or  almshouse, 
for  certain  descriptions  of  poor  persons, 
ordaining  rules  for  the  government  of 
the  house,  and  appointing  the  trustees  as 
the  visitors,  &c. ;  and  disposing  of  the 
surplus  funds  as  in  the  deeds  of  1704. 
The  rules  permitted  the  admission  of  none 
but  such  as  were  poor  and  piously  dis- 
posed, and  of  the  Protestant  religion,  and 
were  able  to  repeat  the  Lord's  Prayer,  the 
Creed,  and  the  Ten  Commandments,  and 
Mr.  P^dward  Bowles's  Catechism.  It  was 
alleged  that  Lady  Hewley,  and  all  the 
trustees,  whose  religious  opinions  could 
be  ascertained,  believed  in  the  doctrine 
of  the  Trinity,  the  Atonement,  and  Orig- 
inal Sin.  In  the  course  of  time,  however, 
the  estates  became  vested  in  trustees,  the 
majority  of  whom,  though  calling  them- 
selves Presbyterians,  professed  Unitarian 
opinions,  and  the  funds  had  for  some 
years  been  applied,  to  a  considerable  ex- 
tent, for  the  support  of  a  seminary,  and 
for  the  benefit  of  poor  preachers  of  that 
denomination.  When  the  charity  was 
founded,  the  Stat.  9  &  10  W.  III.  c.  32, 
against  blasphemy,  was  in  force,  by  which 
those  persons,  who  by  preaching  denied 
the  doctrine  of  the  Trinity,  were  liable 
to  severe  penalties.  The  object  of  the 
suit  was,  in  efEect,  to  take  this  trust  out 
of  the  hands  of  the  Unitarians,  and  to 
obtain  a  declaration,  that  it  should  be 
managed  and  applied  by  and  for  none 
but  ()rthodox  Dissenters;  and  the  con- 
troversy turned  chiefly  on  the  question, 
whether  certain  evidence  was  admissible, 
which  was  offered  to  show  what  sort  of 
persons  were  intended,  in  the  deed  of 
1704    by  "  godly  preachers   of  Christ's 


Holy  Gospel,"  &c.  This  evidence  in 
addition  to  the  deed  of  1707,  consisted 
principally  of  the  will  of  Lady  Hewley, 
the  sermon  of  Dr.  Coulton,  one  of  the 
trustees,  which  was  preached  at  her  fune- 
ral, and  the  will  of  Sir  John  Hewley,  lior 
husband;  all  containing  passages,  show- 
ing that  she  and  the  trustees  were  Pres- 
byterians, believing  in  the  Trinity,  the 
Atonement,  and  Original  Sin  ;  together 
with  the  depositions  of  persons  conver- 
sant with  the  history  and  language  of  the 
times  when  the  deeds  were  executed,  de- 
fining the  meaning  then  commonly  at- 
tached to  the  words  in  question,  by  per- 
sons of  the  donor's  faith ;  and  it  was 
argued  that  the  persons  whom  she  in- 
tended to  designate  as  beneficiaries  could 
have  been  only  those  of  her  own  faith. 
The  Vice-Chancellor  admitted  this  evi- 
dence, and  decreed  that  preachers  of  the 
Unitarian  doctrine  and  their  widows  were 
not  entitled  to  the  benefit  of  this  charity, 
and  he  ordered  that  the  existing  trustees 
should  be  removed  and  others  appointed, 
and  that  the  charity  should  in  future  be 
applied  accordingly.  This  decree  Lord 
Ch.  Lyndhurst,  assisted  by  Patteson,  J., 
and  Alderson,  B.,  afterwards  affirmed. 
An  appeal  being  taken  from  the  judg- 
ment of  Lord  Lyndhurst,  to  the  House 
of  Lords,  the  House,  after  taking  the 
opinions  of  the  common-law  judges,  upon 
certain  questions  proposed  to  them,  dis- 
missed the  appeal.  The  first  and  princi- 
pal of  these  questions  was,  whether  the 
extrinsic  evidence  adduced,  or  what  part 
of  it,  was  admissible  for  the  purpose  of 
determining  who  were  entitled  under  the 
terms  "  godly  preachers  of  Christ's  Holy 
Gospel,"  "  godly  persons,"  and  the  other 
descriptions  contained  in  the  deeds  of 
1704  and  1707,  to  the  benefit  of  Lady 
Hewley's  bounty.  The  other  questions, 
which  were  five  in  number,  were  framed 
to  ascertain,  if  such  evidence  should  be 
deemed  admissible,  what  descriptions  of 
persons  were,  and  what  were  not,  the 
proper  objects  of  the  trusts.  Of  the 
seven  learned  judges,  who  answered  these 
questions,  six  were  of  opinion,  but  on  vari- 
ous grounds,  that  Unitarians  were  ex- 
cluded. Maule,  J.,  was  of  opinion,  that 
none  of  the  evidence  offered  was  admis- 


348 


LAW  OF  EVIDENCE. 


[PABT  il. 


fore  a  contract  is  made  in   ordinary  and  popular  language,  to 
\rhich  no  local  or  teclmical  and  peculiar  meaning  is  attached, 


sible ;  and  that  the  religious  opinions  of 
the  founder  of  a  charity,  even  if  cer- 
tainly known,  could  have  no  legal  effect 
in  the  interpretation  of  an  instrument, 
in  which  no  reference  is  made  to  his  own 
religious  opinions  or  belief.  Erskine,  J., 
was  also  of  opinion  tliat  none  of  the  evi- 
dence was  admissible,  for  the  purpose 
for  which  it  was  offered  ;  but  that  the 
sense  of  the  words  in  question  might  be 
ascertained  from  contemporaneous  writ- 
ings, and  the  history  of  that  da}' ;  and 
tliat  from  these  sources,  already  open  to 
the  House,  it  was  easy  to  collect,  that  the 
words  were  applicable  to  none  but  Trini- 
tarian Dissenters.  Coleridge,  J.,  and 
Gurney,  B.,  were  of  opinion,  that  the  evi- 
dence was  admissible,  to  show  the  opin- 
ions of  those  with  wliom  the  founder 
lived  in  most  confidence,  and  to  what  sect 
she  ill  fact  belonged  ;  and  that  the  phrase- 
ology of  that  party  miglit  be  ascertained 
from  othersources.  Williams,  J.,  tliought 
that  the  words  employed  were  so  indefi- 
nite and  ambiguous,  that  she  must  be 
presumed  to  have  used  them  in  a  limited 
sense  ;  and  that  this  sense  might  be  ascer- 
tained from  her  opinions  ;  for  which  pur- 
pose the  evidence  was  admissible.  Parke, 
B.,  and  Tindal,  C.  J.,  were  of  opinion, 
tiiat,  though  it  miglit  well  be  shown,  by 
competent  evidence,  that  the  words  em- 
ployed had  a  peculiar  meaning  at  the  time 
they  were  used,  and  wliat  was  that  mean- 
ing ;  and  tiiat  the  deeds  were  to  be  read 
by  substituting  the  equivalent  expres- 
sions, tims  ascertained,  instead  of  those 
written  in  the  deeds  ;  yet,  that  evidence 
of  her  own  religious  opinions  was  not 
admissible  to  limit  or  control  the  mean- 
ing of  the  words.  Upon  this  occasion, 
the  general  doctrine  of  the  law  was  stated 
by  5lr.  Baron  I'arke,  in  tlie  following 
terms:  "I  appreliend  that  there  are  two 
descriptions  of  evidence,  wiiicJi  are  clearly 
admissible,  in  every  case,  for  the  purjjose 
of  enabling  a  court  to  construe  any 
written  instrument,  and  to  apply  it  prac- 
tically. In  the  first  place,  there  is  no 
doubt,  that  not  only  where  the  language 
of  the  instrument  is  such  as  tlie  court 
does  not  understand,  it  is  competent  to 
receive  evidence  of  the  proper  meaning 
of  that  language,  as  when  it  is  written 
in  a  foreign  tongue  ;  but  it  is  al.^o  compe- 
tent where  technical  words  or  peculiar 
terms,  or,  indeed,  any  expressions,  are 
used,  which,  at  the  time  the  instrument 
was  written,  had  acquireil  any  appropri- 
ate meaning,  eitlier  generally,  or  by  local 


usage,  or  amongst  particular  classes. 
This  description  of  evidence  is  admissible, 
in  order  to  enable  the  court  to  understand 
the  meaning  of  the  words  contained  in 
the  instrument  itself,  by  themselves,  and 
without  reference  to  the  extrinsic  facts 
on  which  the  instrument  is  intended  to 
operate.  For  the  purpose  of  applying 
the  instrument  to  the  facts,  and  determin- 
ing what  passes  by  it,  and  who  take  an 
interest  under  it,  a  second  description  of 
evidence  is  admissible,  namely,  every 
material  fact,  that  will  enable  the  court 
to  identify  the  person  or  thing  mentioned 
in  the  instrument,  and  to  place  the  court, 
whose  province  it  is  to  declare  the  mean- 
ing of  the  words  of  the  instrument,  as 
near  as  may  be,  in  the  situation  of  the 
parties  to  it.  From  the  context  of  the 
instrument,  and  from  tliese  two  descrip- 
tions of  evidence,  with  such  circumstances 
as  by  law  the  court,  without  evidence, 
may  of  itself  notice,  it  is  its  duty  to  con- 
strue and  apply  the  words  of  that  instru- 
ment ;  and  no  extrinsic  evidence  of  the 
intention  of  the  party  to  the  deed,  from 
his  declarations,  whether  at  the  time  of 
his  executing  the  instrument,  or  before  or 
after  that  time,  is  admissible  ;  the  duty  of 
the  court  being  to  declare  the  meaning 
of  what  is  written  in  the  instrument,  not 
of  what  was  intended  to  have  been  writ- 
ten." Lord  Ch.  J.  Tindal  expounded  the 
same  doctrine  as  follows  :  "  The  general 
rule  I  take  to  be,  that  where  the  words  of 
any  written  instrument  are  free  from  am- 
biguity in  themselves,  and  where  external 
circumstances  do  not  create  any  doubt  or 
difficulty,  as  to  the  proper  application  ot 
those  words  to  claimants  under  the  instru- 
ment, or  the  subject-matter  to  which  the 
instrument  relates,  such  instrument  is 
always  to  be  construed  according  to  the 
strict,  plain,  common  meaning  of  the 
words  themselves  ;  and  that,  in  such  case, 
evidence  deltois  the  instrument,  for  the 
purpose  of  exj)laining  it  according  to  the 
surmised  or  alleged  intention  of  the  jiar- 
ties  to  the  instrument,  is  utterly  inadmis- 
sible. If  it  were  otherwise,  no  lawyer 
would  be  safe  in  advising  U[)on  the  con- 
struction of  a  written  instrument,  nor  any 
party  in  taking  under  it ;  for  the  ablest 
advice  might  be  controlled,  and  the  clear- 
est title  undermined,  if,  at  some  future 
period,  parol  evitlence  of  the  i>articular 
meaning  which  the  party  affixed  to  his 
words,  or  of  his  secret  intention  in  mak- 
ing the  instrument,  or  of  the  objects  he 
meant  to  take  benefit  under  it,  might  be 


CHAP.  XV.]       ADMISSIBILITY  OF  PAHOL  EVIDENCE. 


849 


parol  evidence,  it  seems,  is  not  admissible  to  show  that,  in  that 
particular  case,  the  words  were  used  in  any  other  than  their  ordi- 
nary and  popular  sense. ^ 


set  up  to  contradict  or  vary  the  plain  lan- 
guage of  the  instrument  itself.  The  true 
interpretation,  however,  of  every  instru- 
ment being  manifestly  that  which  will 
make  the  instrument  speak  the  intention 
of  tlie  party  at  the  time  it  was  made,  it 
has  always  been  considered  as  an  excep- 
tion, or,  perhaps,  to  speak  more  precisely, 
not  so  much  an  exception  from,  as  a  cor- 
ollary to,  the  general  rule  above  stated, 
that,  where  any  doubt  arises  upon  the 
true  sense  and  meaning  of  the  words 
themselves,  or  any  difficulty  as  to  their 
application  under  the  surrounding  cir- 
cumstances, the  sense  and  meaning  of 
the  language  may  be  investigated  and 
ascertained  by  evidence  dehors  the  instru- 
ment itself;  for  both  reason  and  common 
sense  agree,  that  by  no  other  means  can 
the  language  of  the  instrument  be  made 
to  speak  the  real  mind  of  the  party. 
Such  investigation  does,  of  necessity, 
take  place  in  tlie  interpretation  of  instru- 
ments written  in  a  foreign  language  ;  in 
the  case  of  ancient  instruments,  where, 
by  the  lapse  of  time  and  change  of  man- 
ners, the  words  have  acquired,  in  the 
present  age,  a  different  meaning  from 
that  which  they  bore  when  originally  era- 
ployed;  in  cases  where  terms  of  art  or 
science  occur ;  in  mercantile  contracts, 
which,  in  many  instances,  use  a  peculiar 
language,  employed  by  those  only  who 
are  conversant  in  trade  and  commerce ; 
and  in  other  instances  in  which  the  words, 
besides  their  general,  common  meaning, 
have  acquired,  by  custom  or  otherwise,  a 
well-known,  peculiar,  idiomatic  meaning, 
in  the  particular  country  in  which  the 
party  using  them  was  dwelling,  or  in  the 
particular  society  of  which  he  formed  a 
member,  and  in  which  he  passed  his  life. 
In  all  these  cases,  evidence  is  admitted 
to  expound  the  real  meaning  of  the  l;\n- 
guage  used  in  the  instrument,  in  order  to 
enable  the  court,  or  judge,  to  construe 
the  instrument,  and  to  carry  such  real 
meaning  into  effect.  But,  whilst  evi- 
dence is  admissible,  in  these  instances, 
for  the  purpose  of  making  the  written  in- 
strument speak  for  itself,  which,  without 
such  evidence,  would  be  either  a  dead 
letter,  or  would  use  a  doubtful  tongue,  or 
convey  a  false  impression  of  the  meaning 
of  the  party,  I  conceive  the  exception  to 
be  strictly  limited  to  cases  of  the  descrip- 
tion above  given,  and  to  evidence  of  the 
nature  above  detailed ;  and  that  in  no 
case  whatever  is  it  permitted  to  explain 
the  language  of  a  deed  by  evidence  of 


the  private  views,  the  secret  intentions, 
or  the  known  principles  of  the  party  to 
the  instrument,  whether  religious,  politi- 
cal, or  otherwise,  any  more  than  by  ex- 
press parol  declarations  made  by  the 
party  himself,  which  are  universally  ex- 
cluded;  for  the  admitting  of  such  evi- 
dence would  let  in  all  the  uncertainty 
before  adverted  to ;  it  would  be  evidence 
which,  in  most  instances,  could  not  be 
met  or  countervailed  by  any  of  an  oppo- 
site bearing  or  tendency,  and  would,  in 
effect,  cause  the  secret  undeclared  inten- 
tion of  the  party  to  control  and  predom- 
inate over  the  open  intention  expressed 
in  the  deed."  See  Attorney-General  v. 
Shore,  11  Sim.  592,  616-627,  631,  632. 
Though,  in  this  celebrated  case,  the  gen- 
eral learning  on  this  subject  has  been 
thus  ably  opened  and  illustrated  ;  3'et  the 
precise  question,  whether  the  religious 
opinions  of  the  founder  of  a  charity  can 
be  received  as  legal  exponents  of  his  in- 
tention, in  an  instrument  otherwise  intel- 
ligible in  its  terms,  and  in  which  no  refer- 
ences made  to  his  own  opinions  or  belief, 
can  hardly  be  considered  as  definitely  set- 
tled ;  especially  as  a  majority  of  the 
learned  judges,  in  coming  to  the  conclu- 
sion in  wliicli  they  concurred,  proceeded 
on  grounds  which  rendered  the  consider- 
ation of  that  point  wholly  unnecessary. 
The  previous  judgment  of  Lord  Ch. 
Lyndhurst,  in  the  same  case,  is  reported 
in  7  Sim.  309,  n.,  312-317.  See  Attorney- 
General  V.  Pearson  et  al.,  3  Meriv.  3-53, 
409-411,  415;  and  afterwards  in  7  Sim. 
290,  307,  808,  where  such  evidence  was 
held  admissible.  But  how  far  this  deci- 
sion is  to  be  considered  as  shaken  by  what 
fell  from  the  learned  judges,  in  the  sub- 
sequent case  of  the  Attorney-General  v. 
Shore,  above  stated,  remains  to  be  seen. 
The  acts  of  the  founder  of  such  a  charity 
may  be  shown,  in  aid  of  the  construction 
of  the  deed,  where  the  language  is  doubt- 
ful; and  contemporaneous  treatises,  doc- 
uments, and  statutes  may  be  read,  to 
show  the  sense  in  which  any  words  or 
phrases  were  commonly  used  in  that  day, 
and  thereby  to  show  the  sense  in  which 
tlie  founder  used  them,  in  the  deed  of 
donation ;  but  his  opinions  are  inadmissi- 
ble. Attorney-General  v.  Drummond,  1 
Drury  &  Warren,  353,  per  Sugden,  C. ; 
affirmed  in  Dom.  Proc.  on  Appeal,  2  Eng. 
Law  &  Eq.  15;  14  Jur.  137.  See  Attor- 
ney-General V.  Glasgow  College,  10  Jurist, 
676. 

1  2  Stark.  Evid.  566;  supra,  §§  277, 


850 


LAW  OF  EVIDENCE. 


[PAUT  n. 


§  295  a.  Principle  of  admission.  It  is  thus  apparent,  as  was 
remarked  at  the  outset,  that  in  all  the  cases  in  which  parol  evi- 
dence has  been  admitted  in  exposition  of  that  which  is  written, 
the  principle  of  admission  is,  that  the  court  may  be  placed,  in 
regard  to  the  surrounding  circumstances,  as  nearly  as  possible 
in  the  situation  of  the  party  whose  written  language  is  to  be 
interpreted  ;  the  question  being,  what  did  the  person,  thus  cir- 
cumstanced, mean  by  the  language  he  has  emploj'ed?  ^ 

§  296.  Parol  evidence  to  rebut  an  equity.  There  is  another 
class  of  cases,  in  which  parol  evidence  is  allowed  by  courts  of 
equity  to  affect  the  operation  of  a  writing,  though  the  writing  on 
its  face  is  free  from  ambiguity,  which  is  yet  considered  as  no  in- 
fringement of  the  general  rule ;  namely,  where  the  evidence  is 
offered  to  Q-ehut  an  equity.  The  meaning  of  this  is,  that  where  a 
certain  presumption  would,  in  general,  be  deduced  from  the 
nature  of  an  act,  such  presumption  may  be  repelled  by  extrinsic 
evidence,  showing  the  intention  to  be  otherwise. ^  The  simplest 
instance  of  this  occurs,  when  two  legacies,  of  which  the  smns  and 
the  expressed  motives  exactly  coincide,  are  presumed  not  to  have 
been  intended  as  cumulative.  In  such  case,  to  rebut  the  pre- 
sumption which  makes  one  of  these  legacies  inoperative,  parol 


280.  But  see  Gray  v.  Harper,  1  Story, 
574,  where  two  booksellers  having  con- 
tracted for  the  sale  and  purchase  of  a  cer- 
tain work  at  "  cost,"  parol  evidence  of 
conversations  between  tliem,  at  the  time 
of  making  the  contract,  was  lield  admis- 
sible to  show  what  sense  they  attached 
to  that  term.  See  also  Selden  v.  Wil- 
liams, 9  Watts,  9  ;  Kemble  v.  Lull,  3  Mc- 
Lean, 272. 

1  [From  an  examination  of  the  cases, 
Mr.  Taylor  (Ev.  §  1109)  deduces  the  fol- 
lowing rules :  First,  where,  in  a  written 
instrument,  the  description  of  the  per- 
son or  thing  intended  is  applicable  with 
ler/al  certdiiiti/  to  each  of  sevpral  subjects, 
extrinsic  evidence,  including  proof  of 
declarations  of  intention,  is  admissible  to 
establish  whicii  of  such  subjects  was 
intended  by  the  author.  Wigram  on 
Wills,  100.  Secondly,  if  the  description 
of  the  person  or  thing  be  jmrtli/  applicable 
and  pitrllif  iiKipplicilile  to  each  of  several  sul)- 
jtcts,  tliougli  extrinsic  evidence  of  the 
eurrounditig  circumstances  may  be  re- 
ceived for  the  purpose  of  ascertaining  to 
which  of  such  subjects  the  language  ap- 
])lies,  yet  evidence  of  the  author's  decla- 
rations of  intention  will  be  inadmissible. 
Doe  u.  Uiscockb,  oM.  &  W.  303.   Thirdlv 


if  the  description  be  partly  correct  and 
partly  incorrect,  and  the  correct  part  be 
sufficient  of  itself  to  enable  the  court  to 
identify  the  subject  intended,  while  the 
incorrect  part  is  inapplicable,  to  am/  subject, 
parol  evidence  will  be  admissible  to  the 
same  extent  as  in  the  last  case,  and  the 
instrument  will  be  rendered  operative 
by  rejecting  the  erroneous  statement. 
Wigram  on  Wilis,  67-70.  Fourthly,  if 
the  description  be  wliolli/  inapplicable  to 
the  subject  intended,  or  said  to  be 
intended  by  it,  evidence  cannot  be  re- 
ceived to  i)rove  whom  or  what  the  au- 
thor really  intended  to  describe.  Id.  163. 
Fifthly,  if  the  language  of  a  written  in- 
strument, when  interpreted  according  to 
its  primary  meaning,  be  insen.-<ible  with 
reference  to  extrinsic  circumstances,  col- 
lateral facts  may  be  resorted  to,  in  order 
to  show  tliat  in  some  secondary  sense  of 
the  words,  and  in  one  in  which  the  author 
meant  to  use  them,  the  instrument  may 
have  a  full  effect.  Doe  v.  Iliscocks,  6 
M.  &  W.  363.) 

^  2  Poth.  on  Obi.  by  Evans,  App.  No. 
xvi.  p.  184  ;  Coote  v.  Bovd,  2  Bro.  Ch. 
622;  Bull.  N.  P.  297,  298 ;  Mann  v.  Mann, 
1  Johns.  Ch.  231. 


CHAP.  XV.]       ADMISSIBILITY  OF  PAEOL  EVIDENCE.  351 

evidence  will  be  received ;  its  effect  being  not  to  show  that  the 
testator  did  not  mean  what  he  said,  but,  on  the  contrary,  to  prove 
that  he  did  mean  what  he  had  exiDressed.^  In  like  manner,  parol 
evidence  is  received  to  repel  the  presumption  against  an  execu- 
tor's title  to  the  residue,  from  the  fact  that  .a  legacy  has  been 
given  to  him.  So,  also,  to  repel  the  presumption,  that  a  portion  is 
satisfied  by  a  legacy  ;  '^  and  in  some  cases,  that  the  portionment  of 
a  legatee  was  intended  as  an  ademption  of  the  legacy.^ 

296  a.  To  correct  mistake.  Courts  of  equity  also  admit  parol 
evidence  to  contradict  or  vary  a  writing,  where  it  is  founded  in  a 
mistake  of  material  facts,  and  it  would  be  unconscientious  or  un- 
just to  enforce  it  against  either  party,  according  to  its  expressed 
terms.  Thus,  if  the  plaintiff  seeks  a  specific  performance  of  the 
agreement,  the  defendant  may  show  that  such  a  decree  would  be 
against  equity  and  justice,  by  parol  evidence  of  the  circumstances, 
even  though  they  contradict  the  writing.  So,  if  the  agreement 
speaks,  by  mistake,  a  different  language  from  what  the  parties 
intended,  this  may  be  shown  in  a  bill  to  reform  the  writing  and 
correct  the  mistake.  In  short,  wherever  the  active  agency  of  a 
court  of  equity  is  invoked,  specifically  to  enforce  an  agreement, 
it  admits  parol  evidence  to  show  that  the  claim  is  unjust,  al- 
though such  evidence  contradicts  that  which  is  written.^  Whether 
coui'ts  of  equity  will  sustain  a  claim  to  reform  a  writing,  or  to 
establish  a  mistake  in  it,  by  parol  evidence,  and  for  specific  per- 
formance of  it  when  corrected,  in  one  and  the  same  bill,  is  still 
an  open  question.  The  English  authorities  are  against  it ;  but 
in  America  their  soundness  is  strongly  questioned.^  So,  also,  if 
a  grantee /rawc^wZew^Z^/ attempts  to  convert  into  an  absolute  sale 
that  which  was  originally  meant  to  be  a  security  for  a  loan,  the 

1  Gresley  on  Evid.  210;  Hurst  v.  pp.  209-218 ;  6  Cruise's  Dig.  tit.  38,  c.  6, 
Beach,  5  Madd.  360,  per  Sir  J.  Leach,  §§  45-57,  and  notes  by  Greenleaf  [2d  ed. 
V.  C.  ( 1857)  vol.  iii.  p.  104,  and  notes]  ;  1  Jarm 

2  5  Madd.  360;  2  Poth.  on  Obi.  by  on  Wilis,  c.  7,  and  notes  by  Perkins. 
Evans,  App.  No.  xvi.  p.  184 ;  Ellison  v.  See  also  post,  vol.  ii.  §§  684,  685  [7th  ed. 
Cookson,  1  Ves.  100;  Clinton  u.  Hooper,  (1858)]. 

Id.  173.     So,  to  rebut  an  implied  trust.  ■*  [Parol  evidence  of  accident,  fraud, 

Livermore  v.  Aldrich,  5  Cusli.  431.  or  mistake,  is  admissible  in  such  cases. 

3  Kirk  V.  Eddowes,  8  Jur.  530.  As  Fisher  v.  Diebert,  54  Pa.  St.  460 ;  Cun- 
the  further  pursuit  of  this  point,  as  well  ningham  v.  Wrenn,  23  III.  64.  But,  in 
as  the  consideration  of  the  presumed  the  absence  of  fraud  or  mistake  of  fact, 
revocation  of  a  will,  by  a  subsequent  parol  evidence  will  not  be  admitted  to 
marriage  and  the  birtli  of  issue,  does  not  correct  a  mistake  of  law.  Potter  v. 
consist  with  the  plan  of  this  treatise,  the  Sewell,  54  Maine,  142.] 

reader  is  referred  to  1  Roper  on  Legacies,  ^  1    Story,   Eq.  Jurisp.    §§    152-161; 

by  White,  pp.  317-353;  Gresley  on  Evid.     Gresley  on  Evid.  205-20y. 


362  LAW   OF  EVIDENCE.  [PAET  U. 

original  design  of  the  conveyance,  tliougli  contrary  to  tlie  terms 
of  the  writing,  may  be  shown  by  parol.  ^ 

§  297.  Ambiguities,  latent  and  patent.  Having  thus  explained  the 
nature  of  the  rule  under  consideration,  and  shown  that  it  only 
excludes  evidence  of  the  language  of  the  party,  and  not  of  the 
circumstances  in  which  he  was  placed,  or  of  collateral  facts,  it 
may  be  proper  to  consider  the  case  of  ambiguities^  both  latent  and 
patent.  The  leading  rule  on  this  subject  is  thus  given  by  Lord 
Bacon :  "  Ambiguitas  verborum  latens  verificatione  suppletur  ; 
nam  quod  ex  facto  oritur  ambiguum,  verificatione  facti  tollitur."  ^ 
Upon  which  he  remarks,  that,  "  there  be  two  sorts  of  ambiguities  of 
words  :  the  one  is  ambiguitas  patens,  and  the  other  latens.  Patens 
is  that  which  appears  to  be  ambiguous  upon  the  deed  or  instru- 
ment ;  latens  is  that  which  seemeth  certain  and  without  ambi- 
guity, for  any  thing  that  appeareth  upon  the  deed  or  instrument ; 
but  there  is  some  collateral  matter  out  of  the  deed  that  breedeth 
the  ambiguity.  Ambiguitas  patens  is  never  holpen  by  averment ; 
and  the  reason  is,  because  the  law  will  not  couple  and  mingle 
matter  of  specialty,  which  is  of  the  higher  account,  with  matter 
of  averment,  wliich  is  of  inferior  account  in  law  ;  for  that  were  to 
make  all  deeds  hollow  and  subject  to  averments,  and  so,  in  effect, 
that  to  pass  without  deed,  which  the  law  appointeth  shall  not 
pass  but  by  deed.  Therefore,  if  a  man  give  land  to  J.  D.  and  J.  S. 
et  hercedibus,  and  do  not  limit  to  whether  of  their  heirs,  it  shall 
not  be  supplied  by  averment  to  whether  of  them  the  intention 
was  (that)  the  inheritance  should  be  limited."  "But  if  it  be 
ambiguitas  latens,  then  otherwise  it  is  ;  as  if  I  grant  my  manor  of 
S.  to  J.  F.  and  his  heirs,  here  appeareth  no  ambiguity  at  all. 
But  if  the  truth  be,  that  I  have  the  manors  both  of  South  S.  and 
North  S.,  this  ambiguity  is  matter  in  fact ;  and  therefore  it  shall 
be  holpen  by  averment,  whether  of  them  it  was  that  the  party 
intended  should  pass."  ^ 

1  Morris  «.  Nixon,  17  Pet.  109.  See  «  See  Bacon's  Law  Tracts,  pp.  99, 100. 
Jenkins  v.  Eldrirlge,  3  Storj-,  181,  284-  And  see  Millers.  Travers,  8  BinR.  244; 
287.  [See  also  MoClane  y.  White. 5  Min.  supra,  §  21)0;  Boed  v.  Prop'rs  of  Locks, 
178;  Tillson  v.  Moultun,  2.3  111.  648;  &c.,  8  How.  S.  C.  274.  Where  a  bill  was 
People  V.  Irwin,  14  Cal.  428.]  drawn  exprossiiis  £200  in   the  body  in 

2  Bacon's  Maxims,  Reg.  23  [25.  As,  words,  but  .£245  in  figures  in  the  margin, 
for  instance,  where  an  agreement  desig-  it  was  held  that  tlie  words  in  the  body- 
nates  "  G.  and  others  "  as  one  of  the  par-  must  be  taken  to  be  the  true  amount  to 
ties,  extrinsic  evidence  is  admissible  to  be  paid  ;  and  that  the  ambiguity  created 
show  who  are  meant  by  "G.  and  others."  by  tlie  figtires  in  the  margin  was  patent, 
Herring  v.  Boston  Iron  Co.,  1  Gray  and  could  not  be  exiilained  by  parol. 
(Mass.),  13G].  Saunderson  v.  Piper,  5  Bing.  N.  C  425 


CHAP.  XV.]       ADMISSIBILITY  OF   PAROL  EVIDENCE.  353 

§  298.  AmbigTiity  defined.  But  here  it  is  to  be  observed,  that 
•words  cannot  be  said  to  be  ambiguous  because  they  are  unintelli- 
gible to  a  man  who  cannot  read  ;  nor  is  a  written  instrument 
ambiguous  or  uncertain  merely  because  an  ignorant  or  uninformed 
person  may  be  unable  to  interpret  it.  /;;  is  ambiguous  only,  when 
found  to  he  of  uncertain  meaning  hy persons  of  comjyetent  skill  and 
information.  Neither  is  a  judge  at  liberty  to  declare  an  instru- 
ment ambiguous,  because  he  is  ignorant  of  a  particular  fact,  art, 
or  science,  which  was  familiar  to  the  person  who  used  the  words, 
and  a  knowledge  of  which  is  therefore  necessary  to  a  right  under- 
standing of  the  words  he  has  used.  If  this  were  not  so,  then  the 
question,  whether  a  will  or  other  instrument  were  ambiguous  or 
uncertain,  might  depend  not  upon  the  propriety  of  the  language 
the  party  has  used,  but  upon  the  degree  of  knowledge,  general 
or  local,  wliich  a  particular  judge  might  happen  to  possess ;  nay, 
the  technical  accuracy  and  precision  of  a  scientific  man  might 
occasion  his  intestacy,  or  defeat  his  contract.  Hence  it  follows 
that  no  judge  is  at  liberty  to  pronounce  an  instrument  ambiguous 
or  uncertain,  until  he  has  brought  to  his  aid,  in  its  interpretation, 
all  the  lights  afforded  by  the  collateral  facts  and  circumstances, 
which,  as  we  have  shown,  may  be  proved  by  parol.^ 

[Lathrop  v.  Blake,  3  Foster,  46.  In  Sar-  to  prove  by  parol,  that  the  original  agree- 
gent  V.  Adams,  3  Gray,  72,  77,  the  ques-  ment  was  that  the  lease  should  include 
tion  arose  how  far  an  agreement  in  only  the  hotel  proper  and  not  the  stores ; 
writing  to  let  for  a  term  of  years  "  the  and  he  was  permitted  so  to  do.  The 
'Adams  House,'  so  called,  situate  on  opinion  of  the  court,  by  Shaw,  C.  J., 
Washington  Street,  in  Boston,  and  nura-  places  the  case  among  latent  ambiguities, 
bered  371  on  said  Washington  Street,"  upon  the  ground,  that  the  very  general 
could  be  explained  by  parol.  The  de-  terms  used  in  the  contract  apply  with  suf- 
fendant  had  fitted  up  an  old  tavern  as  a  ficient  legal  certainty  to  the  entire  build- 
hotel,  under  tlie  name  of  the  "  Adams  ing,  including  the  stores,  and  to  the 
Hcmse,"  on  Washington  Street.  The  en-  portion  of  it  fitted  up  for  a  public  house ; 
trance  to  the  hotel  was  from  said  street,  and  consequently  it  was  competent  to 
and  was  numbered  371.  The  rest  of  the  show,  by  parol,  in  which  sense  the  parties 
ground-floor  of  the  building  was  fitted  up  used  the  terms.  See  also  to  the  same 
for  stores,  which  were  numbered  from  1  effect,  Bainbridge  v.  Wade,  20  L.  J.  x.  s. 
to  5,  Adams  House,  and  were,  at  the  time  Q.  B.  7  ;  Blossom  v.  Griffin,  13  N.  Y. 
of  making  the  agreement,  severally  occu-  569  ;  Griffiths  v.  Hardenberg,  41  N.  Y. 
pied  by  different  tenants.  The  defendant  468 ;  Bradley  v.  Wash.  &c.  Co.,  13  Pet. 
tendered,  in  pursuance  of  the  above  agree-  (U.  S.)  89]. 

ment,  a  lease  duly  executed,  of  the  hotel  i  See    Wigram    on    the    Interpreta- 

known  as  the  Adams  House,  but  not  in-  tion  of  Wills,  p.  174,  pi.  200,  201.     [It 

eluding  the  stores,  which  the  plaintiff  re-  was  decided  in    Bruff  v.  Coneybeare,  9 

fused  to  accept,  and  subsequently  brought  Jur.  n.  s.  78,  that  when  evidence  legiti- 

this  action  to  recover  a  sum  of  money  mately  admitted  in  the  course  of  a  trial 

previously  paid  by  him  to  the  defendant,  raises    a  latent  ambiguity,  evidence   to 

in  part  performance  of  the  agreement,  explain  it  is  properly  admissible ;   and, 

The  defendant,  to  show  that  he  had  com-  if  there   were   in   truth   no  latent    am- 

plied  with  his  obligations  under  the  agree-  biguity,   and    the    evidence   to    explain 

ment,  by  tendering  a  proper  lease,  offered  were  consequently  inadmissible,  still  the 
VOL.  I.                                                 23 


3o4  LAW   OF   EVIDENCE.  LPART  H. 

§  299.  Ambigtuty  and  inaocuracy.  A  distinction  is  furtlier  to  be 
observed,  between  the  ambiguity  of  language  and  its  inaccuracy. 
"  Language,"  Vice-Chancellor  Wigram  remarks,  "  may  be  inac- 
curate without  being  ambiguous,  and  it  may  be  ambiguous  al- 
though perfectly  accurate.  If,  for  instance,  a  testator,  having 
one  leasehold  house  in  a  given  place,  and  no  other  house,  were  to 
devise  his  freehold  house  there  to  A.  B.,  the  description,  though 
inaccurate,  would  occasion  no  ambiguity.  If,  however,  a  testator 
were  to  devise  an  estate  to  John  Baker,  of  Dale,  the  son  of 
Thomas,  and  there  were  two  persons  to  whom  the  entire  descrip- 
tion accurately  applied,  this  description,  though  accurate,  would 
be  ambiguous.  It  is  obvious,  therefore,  that  the  whole  of  that 
class  of  cases  in  which  an  accurate  description  is  found  to  be 
sufficient  merely  by  the  rejection  of  words  of  surplusage  are 
cases  in  which  no  ambiguity  really  exists.  The  meaning  is  cer- 
tain, notwithstanding  the  inaccuracy  of  the  testator's  language. 
A  judge,  in  such  cases,  may  hesitate  long  before  he  comes  to  a 
conclusion  ;  but  if  he  is  able  to  come  to  a  conclusion  at  last,  with 
no  other  assistance  than  the  light  derived  from  a  knowledge  of 
those  circumstances,  to  which  the  words  of  the  will  expressly  or 
tacitly  refer,  he  does  in  effect  declare  that  the  words  have  legal 
certainty,  — a  declaration  which,  of  course,  excludes  the  existence 
of  any  ambiguity.  The  language  may  be  inaccurate  ;  but  if  the 
court  can  determine  the  meaning  of  this  inaccurate  language,  with- 
out any  other  guide  than  a  knowledge  of  the  simple  facts,  upon 
which  —  from  the  very  nature  of  language  in  general  —  its  mean- 
ing depends,  the  language,  though  inaccurate,  cannot  be  ambigu- 
ous. The  circumstance,  that  the  inaccui'acy  is  apparent  on  the 
face  of  the  instrument,  cannot,  in  principle,  alter  the  case."  ^ 
Thus,  in  the  will  of  Nollekens,  the  sculptor,  it  was  provided  that, 
upon  his  decease,  "  all  the  marble  in  the  yard,  the  tools  in  the 
shop,  bankers,  mod^  tools  for  carving,"  &c.,  should  be  the  prop- 
erty of  Alex.  Goblet.  The  controversy  was  upon  the  word 
"  mod^''  which  was  a  case  of  ^patent  inaccuracy ;  but  the  court, 
with  no  guide  to  the  testator's  intention  but  his  words,  and  the 

improper  admission    of    such    evidence  stand,  Morse  v.  Weymouth,  28  Vt.  824 ; 

would  not  be  a  ground  for  a  new  trial,  and,  if  not,  the  court  might  render  such 

because  the  writing  would  then  be  for  a  judgment  as  the  true  construction  re- 

the  court  to  construe  without  regard  to  quired,  notwithstanding  the  verdict.   R.l 
the  evidence.     And  if  the  jury,  with  the  ^  Wigram   on   the   Interpretation  oi 

aid  of   the   evidence,  had   put   the  true  Wills,  pp.  176,  170,  pi.  203,  204. 
construction  upon  it,  the  verdict  should 


CHAP.  XV. J       ADiynSSIBILITY  OF  PAEOL  EVIDENCE.  355 

knowledge  common  to  every  working  sculptor,  decided  that  the 
word  in  question  sufficiently  described  the  testator's  models;  thus 
negativing  the  existence  of  any  ambiguity  whatever.^ 

§  300.  Patent  ambiguities.  The  patent  ambiguity,  therefore,  of 
which  Lord  Bacon  speaks,  must  be  understood  to  be  that  which  re- 
mains uncertain  to  the  court,  after  all  the  evidence  of  surrounding 
circumstances  and  collateral  facts,  which  is  admissible  under  the 
rules  already  stated,  is  exhausted.  His  illustrations  of  this  part 
of  the  rule  are  not  cases  of  misdescription,  either  of  the  person  or 
of  the  thing  to  which  the  instrument  relates ;  but  are  cases  in 
which  the  persons  and  things  being  sufficiently  described,  the  in- 
tention of  the  party  in  relation  to  them  is  ambiguously  expressed.^ 
Where  this  is  the  case,  no  parol  evidence  of  expressed  intention 
can  be  admitted.  In  other  words,  and  more  generally  speaking, 
if  the  court,  placing  itself  in  the  situation  in  which  the  testator 
or  contracting  party  stood  at  the  time  of  executing  the  instru- 
ment, and  with  full  understanding  of  the  force  and  import  of  the 
words,  cannot  ascertain  his  meaning  and  intention  from  the  lan- 
guage of  the  instrument  thus  illustrated,  it  is  a  case  of  incurable 
and  hopeless  uncertainty,  and  the  instrument,  therefore,  is  so  far 
inoperative  and  void.^ 

§  301.  False  description.  There  is  another  class  of  cases,  so 
nearly  allied  to  these  as  to  require  mention  in  this  place  ;  namely, 
those  in  which,  upon  applying  the  instrument  to  its  subject- 
matter,  it  appears  that  in  relation  to  the  subject,  whether  person 
or  thing,  the  description  in  it  is  true  in  part,  but  not  true  in 
every  particular.  The  rule,  in  such  cases,  is  derived  from  the 
maxim,  "  Falsa  demonstratio  non  nocet,  cum  de  corpore  constat."  * 

1  Goblet  y.  Beachy,  3  Sim.  24  ;  Wigram  (2d  ed.  1857)  vol.  ii.  p.  609  and  notes]. 
on  tht!  Interpretation  of  Wills,  pp.  179,  Patent  ambiguities  are  to  be  dealt  with  by 
185.  Parol  evidence  is  admissible  to  ex-  the  court  alone.  But  where  the  meaning 
plain  short  and  incomplete  terms  in  a  of  an  instrument  becomes  ambiguous,  by 
written  agreement,  which  per  se  are  unin-  reason  of  extrinsic  evidence,  it  is  for  the 
telligible,  if  the  evidence  does  not  contra-  jury  to  determine  it.  Smith  v.  Thomp- 
(lict  what  is  in  writing.  Sweet  v.  Lee,  3  son,  18  Law  J,  314  ;  Doe  v.  Beviss, 
M.  &  G.  452 ;  Farm.  &  Mech.  Bank  v.  Id.  628.     See  supra,  §  280. 

Day,  13  Vt.  36.  4  6T.  R.  676;  Broom's  Maxims,  p.  269; 

2  Wigram  on  the  Interpretation  of  Bac.  Max.  Reg.  25.  And  see  Just.  Ins. 
Wills, p.  179 ;  Fish  v.  Hubbard,  21  Wend.  lib.  2,  tit.  20,  §  29.  "  Siquidem  in  nomine, 
651.  cognomine,  prjenomine,  agnomine  legata- 

^  Per  Parsons,  C.  J.,  in  Worthington  rii,  testator  erraverit,  cum  de  persona  con- 

V.  Hylyer,  4  Mass.  205 ;  United  States  v.  stat,  nihilominus  valet  legatum  ;  idemque 

Cantrill,  4  Cranch,   167;    1  Jarman  on  in  haeredibus  servatur;  et  recte  :  nomina 

Wills,  315 ;  1  Powell  on  Devises  (by  Jar-  eniip    significandorum    hominum   gratia 

man),  p.  348 ;  4  Cruise's  Dig.  255,  tit.  32,  reperta  sunt;  qui  si  alio  quolibet  modo 

c.  20,  §  60   (Greenleaf's   ed.)    [Greenl.  intelligantur,  nihil  interest." 


356  LAW   OF  EVIDENCE.  [PAET  H. 

Here  so  much  of  the  description  as  is  false  is  rejected ;  and  the 
instrument  will  take  effect,  if  a  sufficient  description  remains  to 
ascertain  its  application.  It  is  essential,  that  enough  remains  to 
show  plainly  the  intent.^  "  The  rule,"  said  Mr.  Justice  Parke,^ 
"  is  clearly  settled,  that  when  there  is  a  sufficient  description  set 
forth  of  premises,  by  giving  the  particular  name  of  a  close,  or 
otherwise,  we  may  reject  a  false  demonstration ;  but  that,  if  the 
premises  be  described  in  general  terms,  and  a  particular  descrip- 
tion be  added,  the  latter  controls  the  former."  It  is  not,  however, 
because  one  part  of  the  description  is  placed  first  and  the  other 
last  in  the  sentence ;  but  because,  taking  the  whole  together, 
that  intention  is  manifest.  For,  indeed,  "  it  is  vain  to  imagine 
one  part  before  another ;  for  though  words  can  neither  be  spoken 
nor  written  at  once,  yet  the  mind  of  the  author  comprehends 
them  at  once,  which  gives  vitam  et  modum  to  the  sentence."^ 
Therefore,  under  a  lease  of  "all  that  part  of  Blenheim  Park, 
situate  in  the  county  of  Oxford,  now  in  the  occupation  of  one  S., 
lying"  within  certain  specified  abuttals,  "with  all  the  houses 
thereto  belonging,  which  are  in  the  occupation  of  said  S.,"  it  was 
held,  that  a  house  lying  within  the  abuttals,  though  not  in  the 
occupation  of  S.,  would  pass.^  So,  by  a  devise  of  "  the  farm  called 
Trogue's  Farm,  now  in  the  occupation  of  C,"  it  was  held,  that 
the  whole  farm  passed,  though  it  was  not  all  in  C.'s  occupation.^ 
Thus,  also,  where  one  devised  all  his  freehold  and  real  estate 
"in  the  county  of  Limerick  and  in  the  city  of  Limerick;"  and 
the  testator  had  no  real  estates  in  the  county  of  Limerick,  but 
his  real  estates  consisted  of  estates  in  the  county  of  Clare,  which 
was  not  mentioned  in  the  will,  and  a  small  estate  in  the  city  of 
Limerick,  inadequate  to  meet  the  charges  in  the  will ;  it  was 
held,  that  the  devisee  could  not  be  allowed  to  show,  by  parol 
evidence,  that  the  estates  in  the  county  of  Clare  were  inserted 
in  the  devise  to  him,  in  the  first  draft  of  the  will,  which  was 
sent  to  a  conveyancer,  to  make  certain  alterations,  not  affecting 
those  estates  ;  that,  by  mistake,  he  erased  the  words  "  county  of 
Clare  ; "  and  that  the  testator,  after  keeping  the  will  by  him  for 
some  time,  executed  it,  without  adverting  to  the  alteration  as 

1  Doe  V.  Hubbard,  15  Ad.  &  El.  n.  8.  «  Stukeley  v.  Butler,  Hob.  171. 

240,  241,  245  [Peaslee  v.  Gee,  19  N.  H.         ♦  Doe  d.  Smith  v.  Galloway,  6  B.  & 

2731.  Ad.  43. 

2  Doe  d.  Smith  v.  Galloway,  5  B.  &  »  Goodtitle   v.   Southern,  1  M.  &  S. 
Ad.  43,  51.  299. 


CHAP.  XV.]        ADMISSIBILITY   OF   PAEOL  EVTDENCE. 


357 


to  that  county.^     And  so,  where  land  was  described  in  a  patent 
as  lying  in  the  county  of  M.,  and  further  described  by  reference 


1  Miller  v.  Travers,  8  Bing.  244;  Doe 
r.  Chichester,  4  Dow's  P.  C.  65;  Doe  v. 
Lyford,  4  M.  &  S.  650.  The  opinion  of 
the  court  in  Miller  v.  Travers,  by  Tindal, 
C.  J.,  contains  so  masterly  a  discussion  of 
the  doctrine  in  question,  that  no  apology 
seems  necessary  for  its  insertion  entire. 
After  stating  the  case  with  some  prelimi- 
nary remarks,  the  learned  Chief  Justice 
proceeded  as  follows :  "  It  may  be  ad- 
mitted that,  in  all  cases  in  which  a  diffi- 
culty arises  in  applying  the  words  of  a  will 
to  the  thing  which  is  the  subject-matter  of 
the  devise,  or  to  the  person  of  the  devisee, 
the  difficulty  or  ambiguity,  which  is  intro- 
duced by  the  admission  of  extrinsic  evi- 
dence, may  be  rebutted  and  removed  by 
the  production  of  further  evidence  upon 
tlie  same  subject,  calculated  to  explain 
what  was  the  estate  or  subject-matter 
really  intended  to  be  devised,  or  who  was 
the  person  really  intended  to  take  under 
the  will ;  and  this  appears  to  us  to  be  the 
extent  of  the  maxim, '  Ambiguitas  verbo- 
rum  latens,  verificatione  suppletur.'  But 
the  cases  to  which  this  construction  ap- 
plies will  be  found  to  range  themselves 
into  two  separate  classes,  distinguishable 
from  each  other,  and  to  neither  of  which 
can  the  present  case  be  referred.  The 
first  class  is,  where  the  description  of  the 
thing  devised,  or  of  the  devisee,  is  clear 
upon  the  face  of  the  will ;  but,  upon  the 
death  of  the  testator,  it  is  found  that  there 
are  more  than  one  estate  or  subject-matter 
of  devise,  or  more  tlian  one  person,  whose 
description  follows  out  and  tills  the  words 
used  in  the  will.  As,  where  the  testator 
devises  his  manor  of  Dale,  and  at  his 
death  it  is  found  that  he  has  two  manors 
of  that  name,  South  Dale  and  North  Dale  ; 
or,  where  a  man  devises  to  his  son  John, 
and  lie  has  two  sons  of  that  name.  In 
each  of  these  cases  respectively,  parol 
evidence  is  admissible  to  sliow  which 
manor  was  intended  to  pass,  and  which 
son  was  intended  to  take.  (Bac.  Max. 
23 ;  Hob.  32 ;  Edward  Altham's  case, 
8  Rep.  155.)  The  other  class  of  cases  is 
that  in  which  the  description  contained 
in  the  will  of  the  thing  intended  to  be  de- 
vised, or  of  tiie  person  who  is  intended  to 
take,  is  true  in  part,  but  not  true  in  every 
particular.  As,  where  an  estate  is  de- 
vised called  A,  and  is  described  as  in  the 
occupation  of  B,  and  it  is  found,  that 
though  there  is  an  estate  called  A,  yet  the 
whole  is  not  in  B's  occupation  ;  or,  where 
an  estate  is  devised  to  a  person,  whose 
Burname  or  christian  name  is  mistaken  ; 


or  whose  description  is  imperfect  or  inac- 
curate :  in  which  latter  class  of  cases  parol 
evidence  is  admissible  to  show  what  estate 
was  intended  to  pass,  and  who  was  the 
devisee  intended  to  take,  provided  there 
is  sufficient  indication  of  intention  appear- 
ing on  the  face  of  the  will  to  justify  the 
application  of  the  evidence.  But  the  case 
now  before  the  court  does  not  appear  to 
fall  within  either  of  these  distinctions. 
There  are  no  words  in  the  will  which 
contain  an  imperfect,  or,  indeed,  any  de- 
scription whatever  of  the  estates  in  Clare. 
The  present  case  is  rather  one,  in  which 
the  plaintiff  does  not  endeavor  to  apply  the 
description  contained  in  the  will  to  the 
estates  in  Clare  ;  but,  in  order  to  make 
out  such  intention,  is  compelled  to  intro 
duce  new  words  and  a  new  description 
into  the  body  of  the  will  itself.  The  tes- 
tator devises  all  his  estates  in  the  county 
of  Limerick  and  the  city  of  Limerick. 
There  is  nothing  ambiguous  in  this  devise 
on  the  face  of  the  will.  It  is  found,  upon 
inquiry,  that  he  has  property  in  the  city 
of  Limerick,  which  answers  to  the  descrip- 
tion in  the  will,  but  no  property  in  the 
county.  This  extrinsic  evidence  produces 
no  ambiguity,  no  difficulty  in  the  applica- 
tion of  the  words  of  his  will  to  the  state 
of  the  property,  as  it  really  exists.  The 
natural  and  necessary  construction  of  the 
will  is,  that  it  passes  the  estate  which  he 
has  in  the  city  of  Limerick,  but  passes  no 
estate  in  the  county  of  Limerick,  where 
the  testator  had  no  estate  to  answer  that 
description.  The  plaintiff,  however,  con- 
tends, that  he  has  a  right  to  prove  that  the 
testator  intended  to  pass,  not  only  the 
estate  in  the  city  of  Limerick,  but  an 
estate  in  a  county  not  named  in  the  will, 
namely,  the  county  of  Clare  ;  and  that  the 
will  is  to  be  read  and  construed  as  if  the 
word  '  Clare '  stood  in  the  place  of,  or  in 
addition  to,  that  of  Limerick.  But  this,  it 
is  manifest,  is  not  merely  calling  in  tlie 
aid  of  extrinsic  evidence  to  apply  the  in- 
tention of  the  testator,  as  it  is  to  be  col- 
lected from  the  will  itself,  to  the  existing 
state  of  his  property  :  it  is  calling  in  ex- 
trinsic evidence  to  introduce  into  the  will 
an  intention  not  apparent  upon  the  face 
of  the  will.  It  is  not  simply  removing  a 
difficulty  arising  from  a  defective  or  mis- 
taken description  :  it  is  making  the  will 
speak  upon  a  subject  on  which  it  is  alto 
gether  silent,  and  is  the  same  in  effect  as 
the  filling  up  a  blank,  which  the  testator 
might  have  left  in  his  will.  It  amounts, 
in  short,  by  the  admission  of  parol  evi- 


358 


LA"W   OF  EVIDENCE. 


[pAKT  n. 


to  natural  monuments ;  and  it  appeared,  that  the  land  described 
by  the  monuments  was  in  the  county  of  H.,  and  not  of  M. ;  that 


dence,  to  the  making  of  a  new  devise  for 
the  testator,  which  he  is  supposed  to  have 
omitted.  Now,  the  tirst  objection  to  the 
introduction  of  such  evidence  is,  that  it  is 
inconsistent  with  the  rule,  wliich  reason 
and  sense  lay  down,  and  which  has  been 
universally  established  for  the  construc- 
tion of  wills ;  namely,  that  the  testator's 
intention  is  to  be  collected  from  the  words 
used  in  the  will,  and  that  words  which  he 
has  not  used  cannot  be  added.  Denn  v. 
Page,  3  T.  R.  87.  But  it  is  an  objection 
no  less  strong,  that  the  only  mode  of 
proving  the  alleged  intention  of  the  testa- 
tor is  by  setting  up  the  draft  of  the  will 
against  the  executed  will  itself.  As,  how- 
ever, the  copy  of  the  will  which  omitted 
the  name  of  the  county  of  Clare  was  for 
some  time  in  the  custody  of  the  testator, 
and  therefore  open  for  his  inspection, 
which  copy  was  afterwards  executed  by 
him,  witli  all  the  formalities  required  by 
the  Statute  of  Frauds,  the  presum])tion  is, 
that  he  must  have  seen  and  approved  of 
the  alteration,  rather  than  that  he  over- 
looked it  by  mistake.  It  is  unnecessary 
to  advert  to  the  danger  of  allowing  the 
draft  of  the  will  to  be  set  up,  as  of  greater 
autiiority  to  evince  the  intention  of  the 
testator  than  the  will  itself ,  after  the  will 
has  been  solemnly  executed,  and  after  the 
death  of  the  testator.  If  such  evidence 
is  admissible  to  introduce  a  new  subject- 
matter  of  devise,  why  not  also  to  intro- 
duce the  name  of  a  devisee,  altogether 
omitted  in  the  will  ?  If  it  is  admissible  to 
introduce  new  matter  of  devise,  or  a  new 
devisee,  why  not  to  strike  out  such  as  are 
contained  in  the  executed  will  ?  Tiie 
effect  of  such  evidence  in  either  case 
woulil  be,  that  the  will,  though  made  in 
form  by  the  testator  in  his  lifetime,  would 
really  be  made  by  the  attorney  after  his 
deatli ;  that  all  the  guards  intended  to  be 
introduced  by  the  Statute  of  Frauds  would 
be  entirely  destroyed,  and  the  statute  it- 
self virtually  repealed.  And  upoiiexami- 
nation  of  the  decided  cases,  on  which  the 
plaintiff  has  relied  in  argument,  no  one 
will  be  touiul  to  go  the  length  of  support- 
ing the  proposition  which  he  contends  for. 
On  the  contrary,  they  will  all  be  found 
consistent  with  the  distinction  above  ad- 
verted to, — that  an  uncertainty  which 
arises  fron  applying  the  description  con- 
taineil  ir.  the  will,  cither  to  the  thing  de- 
vised or  to  the  jierson  of  the  devisee,  may 
be  helped  by  parol  evidence ;  l)ut  that  a 
new  subject-matter  of  devise,  or  a  new 
deriiee,  where  the  will  is  entirely  silent 


upon  either,  cannot  be  imported  by  parol 
evidence  into  the  will  itself.  Thus,  in 
the  case  of  Lowe  v.  Lord  Huntingtower, 
4  Russ.  581,  n.,in  which  it  was  held,  that 
evidence  of  collateral  circumstances  was 
admissible,  as,  of  the  several  ages  of  the 
devisees  named  in  the  will,  of  the  fact  of 
their  being  married  or  unmarried,  and  the 
like,  for  the  purpose  of  ascertaining  the 
true  construction  of  the  will;  such  evi- 
dence, it  is  to  be  observed,  is  not  ad- 
mitted to  introduce  new  words  into  the 
will  itself,  but  merely  to  give  a  construc- 
tion to  the  words  used  in  the  will,  consist- 
ent with  the  real  state  of  his  property  and 
family  ;  the  evidence  is  produced  to  prove 
facts,  which,  according  to  the  language  of 
Lord  Coke,  in  8  Rep.  155,  '  stand  well 
with  the  words  of  the  will.'  The  case  of 
Standen  v.  Standen,  2  Ves.  589,  decides 
no  more  than  that  a  devise  of  all  the  resi- 
due of  the  testator's  real  estate,  where  he 
has  no  real  estate  at  all,  but  has  a  power 
of  appointment  over  real  estate,  shall  pass 
such  estate  over  which  he  has  the  power, 
though  the  power  is  not  referred  to.  liut 
this  proceeds  upon  the  principle,  that  the 
will  would  be  altogether  inoperative,  un- 
less it  is  taken  that,  by  the  words  used 
in  the  will,  the  testator  meant  to  refer 
to  the  power  of  appointment.  The  case 
of  Mosley  v.  Massey  and  others,  8  East, 
149,  does  not  appear  to  bear  upon  the 
question  now  under  consideration.  After 
the  parol  evidence  had  established  that 
the  local  description  of  the  two  estates 
mentioned  in  the  will  had  been  transposed 
by  mistake,  the  county  of  Radnor  having 
been  applied  to  the  estate  in  Monmouth, 
and  vice  versa,  the  court  held,  that  it  was 
sufficiently  to  be  collected  from  the  words 
of  the  will  itself,  which  estate  the  testator 
meant  to  give  to  the  one  devisee,  and 
which  to  the  other,  independent  of  their 
local  description;  all,  therefore,  that  was 
done,  was  to  reject  the  local  description, 
as  unnecessary,  and  not  to  import  any 
new  description  into  the  will.  In  the  case 
of  Selwood  I'.  Mildway,  3  Ves.  3()G,  the 
testator  devised  to  his  wife  part  of  his 
stock  in  the  four  per  cent  annuities  of  the 
Bank  of  England  ;  and  it  was  shown  by 
parol  evidence,  that,  at  the  time  he  made 
his  will,  he  had  no  stock  in  the  four  per 
cent  annuities,  but  that  he  had  some 
which  he  had  sold  out  and  had  invested 
the  produce  in  long  amiuities.  And  in 
this  case  it  was  lieM,  that  the  bequest  was 
in  substance  a  bequest  of  stock,  using  the 
words  as  a  denomination,  not  as  the  identi> 


CHAP.  XV.]       AD]\nSSIBILITY  OF  PAROL  EVIDENCE. 


559 


part  of  the  description  which  related  to  the  county  was  rejected. 
The  entire  description  in  the  patent,  said  the  learned  judge,  who 


cal  corpus  of  the  stock ;  and  as  none  could 
be  found  to  answer  the  description  but  the 
long  annuities,  it  was  held,  that  such  stock 
should  pass,  rather  than  the  will  be  alto- 
gether inoperative.  This  case  is  certainly 
a  very  strong  one  ;  but  the  decision  ap- 
pears to  us  to  range  itself  under  the  head, 
that' falsa demonstratio  nonnocet,' where 
enough  appears  upon  the  will  itself  to 
show  the  intention,  after  the  false  descrip- 
tion, is  rejected.  The  case  of  Goodtitle 
r.  Southern,  1  M.  &  S.  299,  falls  more 
closely  within  the  principle  last  referred 
to.  A  devise  '  of  all  that  my  farm  called 
Trogue's  Farm,  now  in  the  occupation 
of  A.  C  Upon  looking  out  for  the  farm 
devised,  it  is  found  that  part  of  the  lands 
which  constituted  Trogue's  Farm  are  in 
the  occupation  of  another  person.  It  was 
held,  that  the  thing  devised  was  suiSciently 
ascertained  by  the  devise  of  '  Trogue's 
Farm,'  and  that  the  inaccurate  part  of  the 
devise  might  be  rejected  as  surplusage. 
The  case  of  Day  v.  Trigg,  1  P.  W.  266, 
ranges  itself  precisely  in  the  same  class. 
A  devise  of  all  '  the  testator's  freehold 
houses  in  Aldersgate  Street,'  when  in  fact 
he  had  no  freehold,  but  had  leasehold, 
houses  there.  The  devise  was  held  in 
substance  and  effect  to  be  a  devise  of  his 
houses  there  ;  and  that  as  there  were  no 
freehold  houses  there  to  satisfy  the  de- 
scription, the  word  '  freehold '  should 
rather  be  rejected,  than  tlie  will  be  totally 
void.  But  neither  of  these  cases  affords 
any  authority  in  favor  of  the  plaintiff  ; 
they  decide  only  that,  where  there  is  a 
sufficient  description  in  the  will  to  ascer- 
tain the  thing  devised,  a  part  of  the  de- 
scription, which  is  inaccurate,  may  be 
rejected,  not  that  any  thing  may  be  added 
to  the  will ;  thus  following  the  rule  laid 
down  by  Anderson,  C.  J.,  in  Godb.  131, 
—  'An  averment  to  take  away  surplus- 
age is  good,  but  not  to  increase  that 
which  is  defective  in  the  will  of  the  testa- 
tor.' (Jn  the  contrary,  the  cases  against 
the  plaintiff's  construction  appear  to  bear 
more  closely  on  the  point.  In  the  lirst 
place,  it  is  well  established,  that,  where  a 
complete  blank  is  left  for  the  name  of  tlie 
legatee  or  devisee,  no  parol  evidence, 
however  strong,  will  be  allowed  to  fill  it 
up,  as  intended  by  the  testator.  Hunt  v. 
Hort,  3  Bro.  C.  C.  oil,  and  in  many  other 
cases.  Now  the  principle  must  be  pre- 
cisely the  same,  whether  it  is  the  person 
of  the  devisee,  or  the  estate  or  thing  de- 
vised, which  is  left  altogether  in  blank. 
And  it  requires  a  very  nice  discrimination 


to  distinguish  between  the  case  of  a  will, 
where  the  description  of  the  estate  is  left 
altogether  in  blank,  and  the  present  case, 
where  there  is  a  total  omission  of  the 
estates  in  Clare.  In  the  case  of  Doe  d. 
Oxenden  r.  Chichester,  4  Dow,  P.  C.  65, 
it  was  held  by  the  House  of  Lords,  in 
affirmance  of  the  judgment  below,  that  in 
the  case  of  a  devise  of  '  my  estate  of  Ash- 
ton,'  no  parol  evidence  was  admissible  to 
show,  that  the  testator  intended  to  pass 
not  only  his  lands  in  Ashton,  but  in  the 
adjoining  parishes,  which  he  had  been 
accustomed  to  call  by  the  general  name 
of  his  Ashton  estate.  The  Chief  Justice 
of  the  Common  Pleas,  in  giving  the  judg- 
ment of  all  the  judges,  says, '  If  a  testator 
should  devise  his  lands  of  or  in  Devon- 
shire or  Somersetshire,  it  would  be  im- 
possible to  say,  that  you  ought  to  receive 
evidence,  that  his  intention  was  to  devise 
lands  out  of  those  counties.'  Lord  Eldon, 
then  Lord  Chancellor,  in  page  00  of  the 
Report,  had  stated  in  substance  the  same 
opinion.  The  case,  so  put  by  Lord  Eldon 
and  the  Chief  Justice,  is  the  very  case 
now  under  discussion.  But  the  case  of 
Newburgh  v.  Newburgh,  decided  in  the 
House  of  Lords  on  the  16th  of  Jane,  1825, 
appears  to  be  in  point  with  the  present. 
In  that  case  the  appellant  contended,  that 
the  omission  of  the  word  '  Gloucester,'  in 
the  will  of  the  late  Lord  Newburgh,  pro- 
ceeded upon  a  mere  mistake,  and  was 
contrary  to  the  intention  of  the  testator, 
at  the  time  of  making  his  will,  and  in- 
sisted that  she  ought  to  be  allowed  to 
prove,  as  well  from  the  context  of  the  will 
itself,  as  from  other  extrinsic  evidence, 
that  the  testator  intended  to  devise  to  her 
an  estate  for  life  as  well  in  the  estates  in 
Gloucester,  which  was  not  inserted  in  the 
will,  as  in  the  count}'  of  Sussex,  which 
was  mentioned  therein.  The  question, 
'  whether  parol  evidence  was  admissible 
to  prove  such  mistake,  for  the  purpose  of 
correcting  the  will  and  entitling  the  ap- 
pellant to  the  Gloucester  estate,  as  if  the 
word  "  Gloucester  "  had  been  inserted  in 
the  will,'  was  submitted  to  the  judges, 
and  Lord  Cliief  Justice  Abbott  declared  it 
to  be  the  unanimous  opinion  of  those  who 
had  heard  the  argument  that  it  could  not. 
As  well,  therefore,  upon  the  autliority  of 
the  cases,  and  more  jiarticularly  of  that 
which  is  last  referred  to,  as  upon  reason 
and  principle,  we  tliink  tlie  evidence  of- 
fered by  the  plaintiff  would  be  inadmis- 
sible upon  the  trial  of  the  issue."  [See 
also  Alkman  v.  Cummings,  9  How.  (U.  S.) 


360 


LAW   OF  EVIDENCE. 


[taut  n. 


deliA^ered  the  opinion  of  the  court,  must  be  taken,  and  the  identity 
of  the  land  ascertained  by  a  reasonable  construction  of  the  lan- 
guage used.  If  there  be  a  repugnant  call,  which,  by  the  other 
calls  in  the  patent,  clearly  appears  to  have  been  made  thi-ough 
mistake,  that  does  not  make  void  the  patent.  But  if  the  land 
granted  be  so  inaccurately  described  as  to  render  its  identity 
wholly  uncertain,  it  is  admitted  that  the  grant  is  void.^  So,  if 
lands  are  described  by  the  number  or  name  of  the  lot  or  parcel, 
and  also  by  metes  and  bounds,  and  the  grantor  owns  lands  an- 
swering to  the  one  description  and  not  to  the  other,  the  descrip- 
tion of  the  lands  which  he  owned  will  be  taken  to  be  the  true 
one,  and  the  other  rejected  as  falsa  demonstration 


479.  As  a  general  rule,  tlie  courts  adhere 
to  the  maxim,  Veritas  nominis  toUit 
errorem  demonstratioiiis.  Colclougli  v. 
Smith,  10  L.  T.  n.  s.  918.  But  there 
have  been  very  marked  departures  from 
it,  where  it  was  obvious  that  the  de- 
scription was  more  reliable  than  the 
name.     R.] 

1  Boardnian  v.  Reed  and  Ford's  Les- 
sees, 6  Peters,  328,  345,  per  McLean,  J. 

-  Loomis  0.  Jackson,  19  Jolins.  449 ; 
Lush  V.  Druse,  4  Wend.  31.3 ;  Jackson  v. 
Marsh,  6  Cowen,  281  ;  Wortliington  v. 
Hylyer,  4  Mass.  196  ;  Blague  v.  Gohl,  Cro. 
Car.  447;  Swift  v.  Eyres,  Id.  548.  So, 
wlierc  one  devised  "all  that  freehold  farm 
called  the  Wick  Farm,  containing  two 
hundred  acres  or  tiiereabouts,  occupied 
by  W.  E.  as  tenant  to  me,  with  the  appur- 
tenances," to  uses  applicable  to  freehold 
property  alone ;  and  at  the  date  of  the 
will,  and  at  the  death  of  the  testator,  W. 
E.  held,  under  a  lease  from  him,  two 
hundred  and  two  acres  of  land,  which 
were  described  in  the  lease  as  the  Wick 
Farm,  but  of  which  twelve  acres  were  not 
freehold,  but  were  leasehold  only;  it  was 
held  that  these  twelve  acres  did  not  pass 
by  the  lease.  Hall  v.  Fisher,  1  CoUyer, 
47.  The  object  in  cases  of  this  kind  is, 
to  interpret  the  instrument,  that  is,  to 
ascertain  the  intent  of  the  parties.  The 
rule  to  find  the  intent  is,  to  give  most 
effect  1 1)  those  things  about  which  men 
are  least  liable  to  mistake.  Davis  v. 
Rainsford,  17  Mass.  210;  Mclver  v. 
Walki.T,  9  Cranch,  178.  On  this  prin- 
ciple, the  things  usually  called  for  in  a 
grant,  that  is,  the  things  by  which  the 
land  granted  is  described,  have  been  thus 
marshalled:  First.  The  highest  regard  is 
had  to  natural  boundaries.  Serondli/.  To 
lines  actually  run,  and  corners  actually 
marked,  at  the  time  of  the  grant.    Tliirdly. 


If  the  lines  and  courses  of  an  adjoining 
tract  are  called  for,  the  lines  will  be  ex- 
tended to  them,  if  they  are  sufficiently 
established,  and  no  other  departure  from 
the  deed  is  thereby  required ;  marked 
lines  prevailing  over  those  which  are  not 
marked.  Fourthly.  To  courses  and  dis- 
tances ;  giving  preference  to  the  one  or 
the  other,  according  to  circumstances. 
See  Cherry  v.  Slade,  3  Murpiiy,  82;  Do- 
gan  I'.  Seekright,  4  Hen.  &  Munf.  125, 
130;  Preston  v.  Bowmar,  6  Wheat.  582; 
Loring  v.  Norton,  8  Greenl.  61 ;  2  FlintofE 
on  Real  Property,  537,  538 ;  Nelson  v. 
Hall,  1  McLean,  518;  Wells  v.  Crompton, 

3  Rob.  (La.)  171  [Kellogg  v.  Smith,  7 
Cush.  375,  379-384;  Newhall  v.  Ireson,  8 
Id.  595 ;  Haynes  v.  Young,  36  Maine, 
557].  And  in  determining  the  lines  of 
old  surveys,  in  the  absence  of  any  monu- 
ments to  be  found,  the  variation  of  the 
needle  from  the  true  meridian,  at  the 
date  of  the  original  survey,  should  be 
ascertained ;  and  this  is  to  be  found  by 
the  jury,  it  being  a  question  of  fact  and 
not  of  law.  Burgin  v.  Chenault,  9  B. 
Monr.  285 ;  2  Am.  Law  Journ.  n.  s  470. 
Monuments  mentioned  in  the  deed,  and 
not  tiien  existing,  but  which  are  fortli- 
witli  erected  by  the  parties,  in  order  to 
conform  to  the  deed,  will  be  regarded  as 
the  monuiuents  referred  to,  and  will  con- 
trol the  distances  given  in  the  deed. 
Makepeace  r.  Bancroft,  12  Mass.  409; 
Davis  V.  Rainsford,  17  Mass.  207  [Blaney 
V.  Rice,  20  Pick.  G2;  Cleaveland  r.  Flagg, 

4  Cush.  70,  81];  Leonard  v.  Morrill,  2 
N.  H.  197.  And  if  no  monuments  are 
mentioned,  evidence  of  long-continued 
occupation,  though  be^'ond  the  given 
distances,  is  admissible.  Owen  v.  Bar- 
tholomew, 9  Pick.  520.  If  the  descrip- 
tion is  aml)iguous  or  doubtful,  parol 
evidence   of   the   practical  construction 


CHAP.  XV.]       AD]\nSSIBILITY   OF   PAROL  EVIDENCE. 


861 


§  302.  Parol  evidence  admissible  to  show  that  the  agreement  is 
discharged.  Returning  now  to  the  consideration  of  the  general 
rule,  that  extrinsic  verbal  evidence  is  not  admissible  to  contradict 
or  alter  a  written  instrument,  it  is  further  to  be  observed,  that 
this  rule  does  not  exclude  such  evidence,  when  it  is  adduced  to 
prove  that  the  written  agreement  is  totally  discharged.  If  the 
agreement  be  by  deed,  it  cannot,  in  general,  be  dissolved  by  any 
executory  agreement  of  an  inferior  nature  ;  but  any  obligation  by 
writing  not  under  seal  may  be  totally  dissolved,  before  breach,  by 
an  oral  agreement.^  And  there  seems  little  room  to  doubt,  that 
this- rule  will  apply,  even  to  those  cases  where  a  writing  is  by  the 
Statute  of  Frauds  made  necessary  to  the  validity  of  the  agreement.^ 
But  where  there  is  an  entire  agreement  in  writing,  consisting  of 
divers  particulars,  partly  requisite  to  be  in  writing  by  the  Statute 
of  Frauds,  and  partly  not  within  the  statute,  it  is  not  competent 
to  prove  an  agreed  variation  of  the  latter  part,  by  oral  evidence, 
though  that  part  might,  of  itself,  have  been  good  without  writ- 
ing.^ 


given  by  the  parties,  by  acts  of  occu- 
pancy, recognition  of  monuments  or 
boundaries,  or  otherwise,  is  admissible  in 
aid  of  tlie  interpretation.  Stone  v.  Clarlc, 
1  Met.  378  [Kellogg  v.  Smith,  7  CusU. 
375,  383;  Waterman  v.  Johnson,  13  Pick. 
261;  Frost  v.  Spaulding,  19  Pick.  445; 
Clark  V.  Munyan,  22  Pick.  410  ;  Crafts  /'. 
Hibbard,  4  Met.  438;  Civil  Code  of 
Louisiana,  art.  1951 ;  Wells  v.  Compton, 
3  Rob.  (La  )  171.  Words  necessary  to 
ascertain  the  premises  must  be  retained; 
but  words  not  necessary  for  that  purpose 
may  be  rejected,  if  inconsistent  with  the 
others.  Worthington  v.  Hylyer,  4  Mass. 
205 ;  Jackson  v.  Sprague,  1  Paine,  494 ; 
Vose  V.  Handy,  2  Greenl.  322.  The  ex- 
pression of  quantity  is  descriptive,  and 
may  well  aid  in  finding  the  intent,  where 
the  boundaries  are  doubtful.  Mann  v. 
Pearson,  2  Jolins.  37,  41 ;  Perkins  »•.  Web- 
ster, 2  N.  H.  287;  Thorndike  v.  Richards, 
1  Shepl.  437  ;  Allen  v.  Allen,  3  Shepl. 
287;  Woodman  v.  Lane,  7  N.  H.  241; 
Pernam  v.  Weed,  6  Mass.  131 ;  Riddick 
V.  Leggatt,  3  Murphy,  539,  544 ;  supni, 
§  290.  See  also  4  Cruise's  Dig.  tit.  32, 
c.  21,  §  31,  n.  (Greenleaf's  ed.)  [2  Green- 
leaf's  ed.  (1856)  vol.  ii.  pp.  628-641.  and 
notes],  where  this  subject  is  more  fully 
considered. 

1  Bull.  N.  P.  152;  Milword  y.  Ingram, 
1  Mod.  206;  s.  c.  2  Mod.  43;  Edwards  v. 
Weeks,  1  Mod.  262 ;   s.  c.  2  Mod.  259 ; 


s.  0.  1  Freem.  230;  Lord  Milton  v.  Edge- 
worth,  5  Bro.  P.  C.  318 ;  4  Cruise's  Dig. 
tit.  32,  c.  3,  §  51 ;  Clement  v.  Durgin,  5 
Greenl.  9;  Cottrill  v.  Myrick,  3  Fairf. 
222;  Ratcliff  v.  Pemberton,  1  Esp.  35; 
Fleming  v.  Gilbert,  3  Johns.  531.  But  if 
the  obligation  be  by  deed,  and  there  be  a 
parol  agreement  in  discharge  of  such  obli- 
gation, if  the  parol  agreement  be  exe- 
cuted, it  is  a  good  discharge.  Dearborn 
V.  Cross,  7  Cowen,  48.  See  also  Littler  y. 
Holland,  3  T.  R.  390;  Peytoe's  case,  9 
Co.  77 ;  Kaye  v.  Wag!:orne,  1  Taunt. 
428 ;  Le  Fevre  v.  Le  Fevro,  4  S.  &  R.  241; 
Suydam  v.  Jones,  10  Wend.  180;  Bar- 
nard V.  Darling,  11  Wend.  27,  30.  In 
equity,  a  parol  rescission  of  a  written  con- 
tract, after  breach,  may  be  set  up  in  bar 
of  a  bill  for  specific  performance.  Walker 
V.  Wheatley,  2  Humphreys,  119.  By  the 
law  of  Scotland,  no  written  obligation 
whatever  can  be  extinguished  or  re- 
nounced, without  either  the  creditor's 
oath,  or  a  writing  signed  by  him.  Tait 
on  Evid.  p.  325. 

2  Phil.  &  Am.  on  Evid.  776 ;  2  Phil. 
Evid.  363;  Goss  v.  Lord  Nugent,  5  B.  & 
Ad.  58,  65,  66,  per  Ld.  Denman,  C.  J. ; 
Stowell  V.  Robinson,  3  Bing.  N.  C.  928; 
Cumraings  v.  Arnold,  3  Met.  486  [Stearns 
V.  Hall,  9  Cush.  31,  34J. 

3  Harvey  v.  Grabham,  5  Ad.  &  El.  61, 
74 ;  Marshall  v.  Lynn,  6  M.  &  W.  109. 
[A  contract  under  seal  may  be  modified 


362  LAW  OF  EVIDENCE.  [PAUT  H. 

§  303.  Or  a  new  additional  or  substituted  agreement.  Neither  is  the 
rule  infringed  by  the  admission  of  oral  evidence  to  prove  a  new 
and  distinct  agreement,  upon  a  new  consideration,  whether  it  be  as 
a  substitute  for  the  old,  or  in  addition  to  and  beyond  it.  And  if 
subsequent,  and  involving  the  same  subject-matter,  it  is  imma- 
terial whether  the  new  agreement  be  entirely  oral,  or  whether  it 
refers  to  and  partially  or  totally  adopts  the  provisions  of  the 
former  contract  in  writing,  provided  the  old  agreement  be  re- 
scinded and  abandoned.^  Thus,  where  one  by  an  instrument 
under  seal  agreed  to  erect  a  building  for  a  fixed  price,  which 
was  not  an  adequate  compensation,  and,  having  performed  part 
of  the  work,  refused  to  proceed,  and  the  obligee  thereupon  prom- 
ised that,  if  he  would  proceed,  he  should  be  paid  for  his  labor 
and  materials,  and  should  not  suffer,  and  he  did  so  ;  it  was  held 
that  he  might  recover  in  assumpsit  upon  this  verbal  agreement.^ 
So,  where  the  abandonment  of  the  old  contract  was  expressly 
mutual.^  So,  where  a  ship  was  hired  by  a  charter-party  under 
seal,  for  eight  months,  commencing  from  the  day  of  her  sail- 
ing from  Gravesend,  and  to  be  loaded  at  any  British  port  in 
the  English  Channel ;  and  it  was  afterwards  agreed  by  parol 
that  she  should  be  laden  in  the  Thames,  and  that  the  freight 
should  commence  from  her  entry  outwards  at  the  custom- 
house ;  it  was  held,  that  an  action  would  lie  upon  the  latter 
agreement.* 

§  304.  Enlargement  of  time  of  performance.  It  is  also  Well  settled 
that,  in  a  case  of  a  simple  contract  in  writing,  oral  evidence  is 
admissible  to  show  that,  by  a  subsequent  agreement,  the  time  of 
performance  was  enlarged,  or  the  |)?ac<3  of  performance  changed, 
the  contract  having  been  performed  according  to  the  enlarged 

by  a  naked  oral  agreement,  provided  tlie  Sturdivant,   3   Fairf.    81  ;    Marshall    v. 

other   party   have   so   acted   upon   such  Baker,  1  Appleton,  402;  Chitty  on  Con- 

inodiJication  that  he  cannot  be  placed  in  tracts,  p.  88.     [Where  two  distinct  con- 

»tati  quo.     Lawrence  v.  Dole,  11  Vt.  649  ;  tracts  for  service  on  two  distinct  voyages 

Leathe  v.  Billiard,  8  Gray,  545.]  are  made  at  the  same  time,  and  one'  only 

^  Burn  V.  Miller,  4  Taunt.  745;  Foster  is  reduced  to  writing,  the  other  may  be 

V.  Alanson,  2  T.   it.  479;  Shack  v.  An-  proved  hv  parol.      Page  v.  Sheffield,  2 

thony,   1   M.   &  S.  573,  675;    Sturdy  v.  Curtis,  C."C.  377;    Cilley  v.  Tenney,  31 

Arnaud,  3  T.  R.  696;  Brigham  v.  Rogers,  Vt.  401.   But  new  terms  cannot  be  incor- 

17  Mass.  573,  per  I'utnani,  J. ;  Heard  v.  porated  into  a  written  contract  by  parol. 

Wadham,  1  ICast,  G30,  per  Lawrence,  .1. ;  Adler  r.  Friedman,  IG  Cal.  188.] 

1  Chitty  on  PI.  93 ;  Itichardson  c.  Hooper,  ^  Munroe  v.  Perkins,  9  Pick.  298.  [See 

13  Pick.  440;  Brewster  v.  Countryman,  also  Rand  v.  Mather,  11  Cush.  1.] 

12  Wend.  440;  Delacroix  i'.  Bulkeley,  13  »  Lattimore  i'.  Harsen,  14  Johns.  330, 

Wend.  71  ;    Vicary  c.  Moore,  2  Watts,  *  White     v.    Parkin,     12     East,    678 

456,  457,  per  Gibson,  C.  J.;    Brock  v.  [Holmes  v.  Doane,  9  Cush.  135]. 


CHAP.  XV.]       ADMISSIBILITY  OF  PAROL  EVIDENCE. 


363 


time,  or  at  the  substituted  place,  or  the  performance  having  been 
prevented  by  the  act  of  the  other  party ;  or  that  the  damages  for 
non-performance  were  waived  and  remitted ;  ^  or  that  it  was 
founded  upon  an  insufficient  or  an  unlawful  consideration,  or  was 
without  consideration  ;  ^  or  that  the  agreement  itself  was  waived 
and  abandoned.^  So,  it  has  been  held  competent  to  prove  an 
additional  and  suppletory  agreement,  by  parol ;  as,  for  example, 
where  a  contract  for  the  hire  of  a  horse  was  in  writing,  and  it  was 
further  agreed  by  parol  that  accidents,  occasioned  by  his  sJiylng, 
should  be  at  the  risk  of  the  hirer.^  A  further  consideration  may 
also  be  proved  by  parol,  if  it  is  not  of  a  different  nature  from  that 
which  is  expressed  in  the  deed.^  And  if  the  deed  appears  to  be 
a  voluntary  conveyance,  a  valuable  consideration  may  be  proved 
by  parol.^ 

§  305.  Receipts.     In  regard  to  receipts,  it  is  to  be  noted  that 
they  may  be  either  mere  acknowledgments  of  payment  or  delivery^ 


1  Jones  V.  Barkley,  2  Doug.  684,  694 ; 
Hotham  v.  E.  In.  Co.,  1  T.  R.  638 ;  Cum- 
mings  V.  Arnold,  3  Met.  486  ;  Clement  v. 
Durgin,  5  Greenl.  9 ;  Keating  v.  Price, 
1  Johns.  Cas.  22 ;  Fleming  v.  Gilbert,  3 
Johns.  530,  531,  per  Thompson,  J. ;  Er- 
win  V.  Saunders,  1  Cowen,  249  ;  Frost  v. 
Everett.  5  Cowen,  497 ;  Dearborn  v. 
Cross,  7  Cowen,  50 ;  Neil  v.  Cheves,  1 
Bailev,  537,  538,  n.  (a);  CufE  v.   Penn, 

I  M.  &  S.  21 ;  Robinson  v.  Bachelder,  4 
N.  H.  40 ;  Medomak  Bank  v.  Curtis,  11 
Shepl.  36 ;  Blood  v.  Goodrich,  9  Wend. 
68 ;  Youqua  v.  Nixon,  1  Peters,  C.  C. 
221.  But  see  Marshall  v.  Lynn,  6  M.  & 
W.  109. 

2  See  supra,  §  26,  cases  in  note ;  Mills 
V.  Wyman,  3  Pick.  207 ;  Erwin  v.  Saun- 
ders, 1  Cowen,  249;  Hill  v.  Buckminster, 
5  Pick.  391;  Rawson  y.  Walker,  1  Stark. 
361 ;  Foster  v.  Jolly,  1  C.  M.  &  R.  707, 
708,  per  Parke,  B. ;  Stackpole  v.  Arnold, 

II  Mass.  27,  32;  Folsom  v.  Mussev,  8 
Greenl.  400. 

3  Ballard  v.  Walker,  3  Johns.  Cas.  60 ; 
Poth.  on  Obi.  pt.  3,  c.  6,  art.  2,  No.  6-36 ; 
Marshall  v.  Baker,  1  Appleton,  402 ;  Eden 
V.  Blake,  13  M.  &  W.  614. 

4  Jettery  v.  Walton,  1  Stark.  267.  In 
a  suit  for  breach  of  a  written  agreement 
to  manufacture  and  deliver  weekly  to 
the  plaintiff  a  certain  quantity  of  cloth, 
at  a  certain  price  per  yard,  on  eight 
months'  credit,  it  was  held,  that  the  de- 
fendant might  give  in  evidence,  as  a  good 
defence,  a  subsequent  parol  agreement 
between  him  and  the  plaintiff,  made  on 


sufficient  consideration,  by  ■which  the 
mode  of  payment  was  varied,  and  that 
the  plaintiff  had  refused  to  perform  the 
parol  agreement.  Cummings  v.  Arnold, 
3  Met.  486.  See  further,  Wright  v. 
Crookes,  1  Scott,  n.  s.  685.  Where  the 
action  is  for  work  and  labor  extra  and 
beyond  a  written  contract,  the  plaintiff 
wiH  be  held  to  produce  the  written  con- 
tract, for  the  purpose  of  showing  what 
was  included  in  it.  Buxton  v.  Cornish, 
12  M.  &  W.  426;  Vincent  v.  Cole,  1  M.  & 
Malk.  257.  [It  may  be  shown  by  parol 
that,  at  the  time  a  promissory  note  was 
given  by  A  to  B  for  money  lent,  an  agree- 
ment was  made  to  pay  a  certain  sum  as 
extra  interest.  Rohan  v.  Hanson,  11 
Cush.  44,  46.  The  date  of  a  contract  in 
writing,  when  referred  to  in  the  body  of 
the  contract,  as  fixing  the  time  of  pay- 
ment, cannot  be  altered  or  varied  by  pa- 
rol. Joseph  V.  Bigelow,  4  Cush.  82.  84. 
The  time  of  performance  of  a  written 
contract  within  the  Statute  of  Frauds 
may  be  shown  to  have  been  enlarged  by 
a  subsequent  parol  asrreement.  Stearns 
V.  Hall,  9  Cush.  31,  34.] 

5  Clifford  V.  Turrill,  9  Jur.  633  [Miller 
V.  Goodwin,  8  Gray,  642;  Pierce  v.  Wey- 
mouth, 45  Maine,  481 ;  Lewis  v.  Brewster, 
57  Pa.  St.  410;  Cowan  v.  Cooper,  41  Ala. 
187.  But  not  another  or  different  con- 
sideration. Hendrick  v.  Crowlev,  31  Cal. 
471 ;  Sewell  v.  Buxton,  2  Md.'  Ch.  447. 
But  see  Rhine  v.  Ellen,  36  Cal.  362]. 

e  Pott  V.  Todhunter,  2  Collyer,  Ch, 
Cas.  76,  84. 


364 


LAW   OF  EVIDENCE. 


[part  n. 


or  they  may  also  contain  a  contract  to  do  something  in  relation 
to  the  thing  delivered.  In  the  former  case,  and  so  far  as  the 
receipt  goes  only  to  acknowledge  payment  or  delivery,  it  is 
merely  prima  facie  evidence  of  the  fact,  and  not  conclusive  ;  and 
therefore  the  fact  which  it  recites  may  be  contradicted  by  oral 
testimony.  But  in  so  far  as  it  is  evidence  of  a  contract  be- 
tween the  parties,  it  stands  on  the  footing  of  all  other  contracts 
in  writing,  and  cannot  be  contradicted  or  varied  by  parol. ^ 
Thus,  for  example,  a  bill  of  lading,  which  partakes  of  both  these 
characters,  may  be  contradicted  and  explained  in  its  recital, 
that  the  goods  were  in  good  order  and  well  conditioned,  by 
showing  that  their  internal  order  and  condition  was  bad ;  and, 
in  like  manner,  in  any  other  fact  which  it  erroneously  recites  ; 
but  in  other  respects  it  is  to  be  treated  like  other  written  con- 
tracts.2 

We  here  conclude  the  Second  Part  of  this  Treatise. 


1  Stratton  v.  Rastall,  2  T.  R.  366 ;  Alner 
V.  George,  1  Campb.  392  ;  supra,  §  26,  n. ; 
Stackpole  v.  Arnold,  11  Mass.  27,  32  ; 
Tucker  v.  Maxwell,  Id.  143 ;  Johnson  v. 
Johnson,  Id  359,  363,  per  Parker,  C  J.; 
"Wilkinson  v.  Scott,  17  Mass.  257  ;  Rex 
V.  Scammonden,  3  T.  R.  47-1 ;  Rollins  v. 
Dyer,  4  Shepl.  475 ;  Brooks  i".  Wliite,  2 
Met.  283;  Niles  v.  Culver,  4  Law  Rep. 
N.  8.  72.  "  The  true  view  of  the  subject 
seems  to  be,  that  such  circumstances,  as 
would  lead  a  court  of  equitj'  to  set  aside 
a  contract,  such  as  fraud,  mistake,  or  sur- 
prise, may  be  shown  at  law  to  destroy  the 
effect  of  a  receipt."  Per  Williams,  J., 
in  Fuller  v.  Crittenden,  9  Conn.  406 ; 
supra,  §  285.  [A  discharge  on  an  execu- 
tion is  only  a  receipt,  and  may  be  ex- 
plained by  parol  evidence.  Edgerly  v. 
Emerson,  3  Foster,  555;  supra,  §  212. 
See  also  Brown  i;.  Cambridge,  3  Allen, 
474.] 

2  Barrett  v.  Rogers,  7  Mass.  297  [Gard- 
ner I'.  Chase,  2  R.  I.  112;  The  Tus-kar.  1 
Sprague  (U.  8.  Dist.  Ct.),  71];  Ben- 
jamin V.  Sinclair,  1  Bailey,  174.  In  the 
latter  case,  it  was  held,  that  tlie  recital  in 
tlie  bill  of  lading,  as  to  the  good  order  and 
condition  of  tlie  goods,  was  applicable 
only  to  their  external  and  apparent  order 
anci  condition  ;  but  that  it  did  not  extend 
to  the  quality  of  the  material  in  which 
they  were  enveloped,  nor  to  secret  defects 
in  the  goods  themselves  ;  and  that,  as  to 
defects  of  the  two  latter  descriptions, 
parol  evidence  was  admissible.  [Blade 
V.  Ch.  &  C.  li.  R.  Co.,  10  Wis.  4;  Arnold 


V.  Jones,  26  Texas,  335.]  See  also  Smith 
V.  Brown,  3  Hawks,  580;  May  v.  Bab- 
cock,  4  Ohio,  334,  346  [Clark  v.  Barnwell, 
12  How.  (U.S.)  272;  O'Briens.  Gilchrist, 
34  Maine,  554;  Ellis  v.  Willard,  5  Selden, 
529;  Fitzhugh  v.  Wiman,  Id.  559,  666; 
McTyer  v.  Steele,  26  Ala.  487.  Where  the 
payee  of  a  promissory  note,  not  negotia- 
ble, for  $120,  delivered  it  to  a  third  per- 
son, and  took  back  the  following  writing: 
"Received  of  A  a  note  (describing  it), 
for  which  I  am  to  collect  and  account  to 
the  said  A  the  sum  of  $110,  when  the 
above  note  is  collected,  or  return  said 
note  back  to  said  A  if  I  choose ;  "  it  was 
decided  that  parol  evidence,  which  was 
offered  to  show  that  the  note  was  held 
on  other  and  different  terms,  was  rightly 
excluded.  Lnngdon  v.  Langdon,  4  (iray, 
186,  188;  Furbush  i-.  Goodwin,  6  Foster, 
425;  Wood  v.  Whiting,  21  Barb.  100,  197. 
See  also  Alexander  v.  Moore,  19,Mo.  143 ; 
Sutton  V.  Kettell,  Sprague's  Decisions, 
3091. 

[§  305  a.  "  The  rule  that  parol  evi- 
dence is  not  admissible  to  vary  or  control 
a  written  contract,  is  not  applicable  to 
mere  bills  of  parcels  made  in  the  usual 
form,  in  which  nothing  appears  but  the 
names  of  the  vendor  and  vendee,  the  arti- 
cles purchased,  with  the  prices  afti.xed, 
and  a  receipt  of  payment  by  the  vendor. 
These  form  an  exception  to  the  general 
rule  of  evidence,  being  informal  docu- 
ments, intended  only  to  specify  prices, 
quantities,  and  a  receipt  of  payment,  and 
not  used  or  designed  to  embody  and  set 


CHAP.  XV.]       ADMISSIBILITY  OF   PAROL  EVIDEKCE. 


365 


out  the  terms  and  conditions  of  a  contract 
of  bargain  and  sale.  They  are  in  the 
nature  of  receipts,  and  are  always  open 
to  evidence,  which  proves  the  real  terms 
upon  which  the  agreement  of  sale  was 
made  between  the  parties.  1  Co  wen  & 
Hill's  note  to  Phil,  on  Evid.  885,  n.  229 ; 
2  Id.  603,  n.  295 ;  Harris  v.  Jolinston,  3 
Cranch,  311 ;  Wallace  v.  Rogers,  2  N.  H. 


506;  Bradford  v.  Manlev,  13  Mass.  1.S9- 
Fletcher  v.  Willard,  14  Pick.  464."  By 
Bigelow,  J.,  in  Hazard  v.  Loring,  10  Cush. 
267,  268.  The  words,  on  a  bill  of  parcels, 
"  consigned  6  mo.,"  and  "  Terms  Cash," 
may  be  explained  by  parol.  George  v. 
Joy,  19  N.  H.  644.  See  Linsley  v.  Lovely, 
26  Vt.  123.1 


PART    III. 

OF  THE   INSTRUMENTS  OF  EVIDENCE. 


PART    III. 

OF  THE  INSTRUMENTS  OF  EVIDENCE. 


CHAPTER   I. 

OF    "WITNESSES,    AND    THE    MEANS    OF    PROCTJEING    THEIR 
ATTENDANCE. 

§  306.  Instruments  of  evidence.  Having  thus  considered  the 
general  nature  and  principles  of  evidence,  and  the  rules  which 
govern  in  the  production  of  evidence,  we  come  now,  in  the  third 
place,  to  speak  of  the  instruments  of  evidence,  or  the  means  by 
which  the  truth  in  fact  is  established.^  In  treating  this  subject, 
we  shall  consider  how  such  instruments  are  obtained  and  used, 
and  their  admissibility  and  effect. 

§  307.  "Written  and  unwritten.  The  instruments  of  evidence 
are  divided  into  two  general  classes ;  namely,  unwritten  and  writ- 
ten. The  former  is  more  naturally  to  be  first  considered,  because 
oral  testimony  is  often  the  first  step  in  proceeding  by  document- 
ary evidence,  it  being  frequently  necessary  first  to  establish,  in 
that  mode,  the  genuineness  of  the  documents  to  be  adduced. 

§  308.  Unwritten.  By  unwritten  or  oral  evidence  is  meant  the 
testimony  given  by  witnesses,  viva  voce,  either  in  open  court  or 
before  a  magistrate  acting  under  its  commission  or  the  authority 
of  law.  Under  this  head  it  is  proposed  briefly  to  consider 
(1)  The  method,  in  general,  of  procuring  the  attendance  and 
testimony  of  witnesses ;  (2)  The  competency  of  witnesses ; 
(3)  The  course  and  practice  in  the  examination  of  witnesses  ; 
and  herein  of  the  impeachment  and  the  corroboration  of  their 
testimony. 

§  309.    Attendance  of  witnesses.     And  first,  in  regard  to  the 

1  Parties  are,  ordinarily,  permitted  to  discretion  of  the  judge,  be  admitted,  if 
exercise  their  own  judgment,  as  to  the  it  is  expected  to  become  relevant  by  its 
order  of  introducing  their  proofs.  Lynch  connection  with  other  testimony  to  be 
w.  Benton,  3  Rob.  (La.)  105.  And  testi-  afterwards  offered.  The  State  w.  M'Allis- 
mony,  apparently  irrelevant,  may,  in  the     ter,  11  Shepl.  139. 

VOL.  I.  24 


370  LAW   OF  EVIDENCE.  [PAUT  Hf. 

method  of  procuring  the  attendance  of  witnesses^  it  is  to  be 
observed  that  every  court,  having  power  definitely  to  hear  and 
determine  any  suit,  has,  by  the  common  law,  inherent  power  to 
call  for  all  adequate  proofs  of  the  facts  in  controversy,  and,  to 
that  end,  to  summon  and  compel  the  attendance  of  witnesses 
before  it.^  The  ordinary  summons  is  a  writ  of  subpoena,  which 
is  a  judicial  writ,  directed  to  the  witness,  commanding  him  to 
appear  at  the  court  to  testify  what  he  knows  in  the  cause  therein 
described,  pending  in  such  court,  under  a  certain  penalty  men- 
tioned in  the  writ.  If  the  witness  is  expected  to  produce  any 
books  or  papers  in  his  possession,  a  clause  to  that  effect  is  inserted 
in  the  writ,  which  is  then  termed  a  subpoena  duces  tecum?  The 
writ  of  subpoena  suffices  for  only  one  sitting  or  term  of  the  court. 
If  the  cause  is  made  a  remanet,  or  is  postponed  by  adjournment 
to  another  term  or  session,  the  witness  must  be  summoned  anew. 
The  manner  of  serving  the  subpoena  being  in  general  regulated 
by  statutes,  or  rules  of  court,  which  in  the  different  States  of  the 
Union  are  not  perfectly  similar,  any  further  pursuit  of  this  part 
of  the  subject  would  not  comport  "svith  the  design  of  this  work.^ 
And  the  same  observation  may  be  applied,  once  for  all,  to  all 
points  of  practice  in  matters  of  evidence  which  are  regulated  by 
local  law. 

§  310.  In  civil  cases.     In  order  to  secure  the  attendance  of  a  wit- 
ness in  civil  cases,  it  is  requisite,  by  Stat.  5  Eliz,  c.  9,  that  he 

^  [Tlie  House  of  Representatives  of  documents,   letters,   and  paper  writings 

Massacluisetts  has  ])Ower  to  compel  wit-  wliatsoever,  that  can  or  may  afford  any 

nesses  to  attend   and  testify  before  the  information  or  evidence  in  said  cause; 

House  or  one  of  its  committees  ;  and  the  then  and  there  to  testify  and  sliow  all  and 

refusal  of  a  witness  to  appear  is  a  con-  singular    those    things,    which    you   (or 

tempt  for  whicii  the   House  may  cause  eitiier  of  you)  know,  or  the  said  docu- 

liim  to  be  arrested,  and  brought  before  ments,  letters,  or  instruments  in  writing 

the  House  ;  and  for  a  refusal  to  testify  he  do   import  of  and  concerning   the   said 

may  be  imprisoned.     Burnham  v.  Mor-  cause  now  depending.     And  this  you  (or 

risscy,  14  Gray,  220.     But  they  cannot  any  of  you)  shall  in  no  wise  omit,"  &c. 

confer  that  power,  without  the*  right  of  3  Chitty's  Gen.  Practice,  «30,  n. ;  Amey 

appeal  to  a  jury,  upon  a  municipal  legis-  v.  Long,  9  East,  473. 
lature.     Wiiitcomb's  case,  Sup.  Jud.  Ct.  ^  The  English  practice  is  stated  in  2 

Mass.  1870.1  Tidd's  Prac.  (Dth  ed.)  805-809;  1  Stark. 

■2  This  additional  clause  is  to  the  fol-  Evid.   77  et  seq. ;  3  Chitty's  Gen.  Prac. 

lowing  effect:  "And  also,  that  you  do  828-834;    2    Phil.    Evid.   370-392.     The 

diligently  and  carefully  search  for,  e.xam-  American  practice,  in  its  principal  fea- 

ine,  and  inquire  after,  and  bring  with  you  tures,  may  be  collected  from  the  cases 

and  produce,  at  the  time  and  place  afore-  cited  in  the  United  States  Digest,  vol.  iii. 

said,  a  bill  of  exchange,  dated,"  &c.  (iiere  tit.  Witnkss,  II. ;  Id.  Suppt.  vol.  ii.  tit. 

describing  with  precision  the  papers  and  Witness,  I. ;  1  Paine  «&  Duer's  Practice, 

documents   to   be  produced),  "together  part  2,  c.  7,  §  4;  Conkling's  Practice, 

with  all  copies,  drafts,  and  vouchers,  re-  part  2,  c.  2,  §  7,  pp.  263-293;  Howe's 

lating  to  the  said  documents,  and  all  other  Practice,  228-230. 


CHAP.  I.] 


ATTENDANCE   OF   WITNESSES. 


"  have  tendered  to  him,  according  to  his  countenance  or  calling, 
his  reasonable  charges."  Under  this  statute  it  is  held  necessary, 
in  England,  that  his  reasonable  expenses,  for  going  to  and  return- 
ing from  the  trial,  and  for  his  reasonable  stay  at  the  place,  be 
tendered  to  him  at  the  time  of  serving  the  subpoena  ;  and,  if  he 
appears,  he  is  not  bound  to  give  evidence  until  such  charges  are 
actually  paid  or  tendered,^  unless  he  resides,  and  is  summoned  to 
testify,  within  the  weekly  bills  of  mortality  ; .  in  which  case  it  is 
usual  to  leave  a  sMlling  with  him,  upon  the  delivery  of  the  8uh- 
poena  ticket.  These  expenses  of  a  witness  are  allowed  pursuant 
to  a  scale,  graduated  according  to  his  situation  in  life.^  But  in 
this  country  these  reasonable  expenses  are  settled  by  statutes,  at 
a  fixed  sum  for  each  day's  actual  attendance,  and  for  each  mile's 
travel,  from  the  residence  of  the  witness  ^  to  the  place  of  trial  and 
back,  without  regard  to  the  emplojonent  of  the  witness,  or  his 
rank  in  life.  The  sums  paid  are  not  alike  in  all  the  States,  but 
the  principle  is  believed  to  be  everywhere  the  same.  In  some 
States,  it  is  sufficient  to  tender  to  the  witness  his  fees  for  travel, 
from  his  home  to  the  place  of  trial,  and  one  day's  attendance,  in 
order  to  compel  him  to  appear  upon  the  summons ;  but  in  others, 
the  tender  must  include  his  fees  for  travel  in  returning.*    Neither 


1  Newton  v.  Harland,  9  Dowl.  16. 

2  2  Phil.  Evid.  pp.  375,  876 ;  2  Tidd's 
Pr.  (9th  ed.)  p.  806.  An  additional  com- 
pensation, for  loss  of  time,  was  formerly 
allowed  to  medical  men  and  attorneys ; 
but  that  rule  is  now  exploded.  But  a  rea- 
sonable compensation  paid  to  a  foreign 
witness,  who  refused  to  come  without  it, 
and  whose  attendance  Avas  essential  in 
the  cause,  will  in  general  be  allowed  and 
taxed  against  the  losing  party.  See 
Lonergan  v.  The  Royal  Excliange  Assur- 
ance, 7  Bing.  72-5;  s.  c.  Id.  729;  Collins 
V.  Godefroy,  1  B.  &  Ad.  950.  There  is 
also  a  distinction  between  a  witness  to 
facts,  and  a  witness  selected  by  a  party 
to  give  his  opinion  on  a  subject  with 
which  he  is  peculiarly  conversant  from 
his  employment  in  life.  The  former  is 
bound,  as  a  matter  of  public  duty,  to 
testify  to  facts  within  his  knowledge. 
The  latter  is  under  no  such  obligation ; 
and  the  party  who  selects  him  must  pay 
him  for  his  time,  before  he  will  be  com- 
pelled to  testify.  Webb  i\  Page,  1  Car. 
&  Kir.  23. 

8  It  has  been  held,  that,  for  witnesses 
brought  from  another  State,  no  fees  can 
be  taxed  for  travel,  beyond  the  line  of 


the  State  in  which  the  cause  is  tried. 
Howland  v.  Lenox,  4  Johns.  311;  New- 
man V.  The  Atlas  Ins.  Co.,  Phillip's  Dig. 
113;  Melvin  v.  Whiting,  13  Pick.  190; 
White  ;;.  Judd,  1  Met.  293.  But  the  rea- 
sons for  these  decisions  are  not  stated, 
nor  are  they  very  easily  perceived.  In 
Emjiand,  the  early  practice  was  to  allow 
all  the  expenses  of  bringing  over  foreign 
witnesses,  incurred  in  good  faith ;  but  a 
large  sum  being  claimed  in  one  case,  an 
order  was  made  in  the  Common  Pleas, 
tliat  no  costs  should  be  allowed,  except 
while  the  witness  was  within  the  reach 
of  process.  Hagedorn  v.  Allnut,  3  Taunt. 
379.  This  order  was  soon  afterwards 
rescinded,  and  the  old  practice  restored. 
Cotton  V.  Witt,  4  Taunt.  65.  Since  which 
the  uniform  course,  both  in  that  court 
and  in  B.  R.,  has  been  to  allow  all  the 
actual  expenses  of  procuring  the  attend- 
ance of  the  witness,  and  of  his  return. 
Tremain  v.  Barrett,  6  Taunt.  88  ;  2  Tidd's 
Pr.  814 ;  2  Phil.  Evid.  376  (9th  ed.).  And 
see  Hutchins  v.  The  State,  8  Mo.  288. 
[See  also  Gunnison  v.  Gunnison,  41  N.  H. 
121.] 

*  The  latter  is  the  rule  in  the  courts 
of  the   United   States.     See  Conkling's 


372  LAW   OF  EVIDENCE.  [PAET  HI. 

is  the  practice  uniform  in  this  country,  as  to  the  question  whether 
the  witness,  having  appeared,  is  bound  to  attend  from  day  to  day, 
until  the  trial  is  closed,  without  the  payment  of  his  daily  fees  ; 
but  the  better  opinion  seems  to  be,  that,  without  payment  of  his 
fees,  he  is  not  bound  to  submit  to  an  examination.^ 

§  311.  In  criminal  cases.  In  criminal  cases,  no  tender  of  fees  is 
in  general  necessary,  on  the  part  of  the  government,  in  order  to 
compel  its  witnesses  to  attend  ;  it  being  the  duty  of  every  citizen 
to  obey  a  call  of  that  description,  and  it  being  also  a  case,  in 
which  he  is  himself,  in  some  sense,  a  party.^  But  his  fees  will  in 
general  be  finally  paid  from  the  public  treasury.  In  all  such 
cases,  the  accused  is  entitled  to  have  compulsory  process  for  ob- 
taining witnesses  in  his  favor.^  The  payment  or  tender  of  fees, 
however,  is  not  necessary  in  any  case,  in  order  to  secure  the 
attendance  of  the  witness,  if  he  has  waived  it ;  the  provision  be- 
ing solely  for  his  benefit.*  But  it  is  necessary  in  all  civil  cases, 
that  the  witness  be  summoned,  in  order  to  compel  him  to  testify ; 
for,  otherwise,  he  is  not  obliged  to  answer  the  call,  though  he  be 
present  in  court ;  but  in  criminal  cases,  a  person  present  in  court, 
though  he  have  not  been  summoned,  is  bound  to  answer.^  And 
where,  in  criminal  cases,  the  witnesses  for  the  prosecution  are 
bound  to  attend  upon  the  summons,  without  the  payment  or  ten- 
der of  fees,  if,  from  poverty,  the  witness  cannot  obey  the  sum- 
mons, he  will  not,  as  it  seems,  be  guilty  of  a  contempt.^ 

§  312.  v;"hen  witness  is  in  custody.  If  a  witness  is  in  custody, 
or  is  in  the  military  or  naval  service,  and  therefore  is  not  at  lib- 
erty to  attend  without  leave  of  his  superior  officer,  which  he 

Practice,  pp.  265,  200 ;  LL.  U.  S.  1799,  have  process  for  his  witnesses  before  in- 
c.  125  [19J,  §  6,  vol.  i.  p.  571  (Story's  dictment.  United  States  v.  Moore,  Wal- 
ed.) [1  U.  S.  Stat,  at  Large  (L.  &  B.'s  lace,  23.  In  Massachitsetts,  in  capital 
ed.),  p  G20|.  cases,  tiie  prisoner  may  liave  process  to 

1  1  Paine  &  Dner's  Practice,  497  ;  Hal-  bring  in  his  witnesses  at  the  expense  of 
lett  V.  Mears,  14  East,  15,  16,  n.  (a);  the  Commonwealth.  Williams's  case,  13 
Mattocks  V.  Wlieaton,  10  Vt.  493.  [In  Mass.  601.  In  Eiifjiand,  the  court  has 
New  Hampshire  (Bliss  v.  Brainard,  42  power  to  order  the  payment  of  fees  to 
N.  H.  255),  it  is  said  the  witness,  at  the  witnesses  for  the  crown,  in  all  cases  of 
end  of  eii(;h  day,  has  tlie  right  to  return  felony ;  and,  in  some  cases,  to  allow  fur- 
liomc,  if  his  fees  for  the  next  day  are  ther  compensation.  Stat.  18  Geo.  III. 
not  paid  upon  application  to  the  party  c.  19;  Phil.  &  Am.  on  Evid.  788,  789;  2 
Bummoniiig  liim  or  to  his  attorney.]  Phil.  Evid.  380;  1  Stark.  Evid.  82,  83. 

2  In   i\i'io  York,  witnesses  are  bound  *  Const.  U.  S.  Amendments,  art.  6. 

to  attend  for  the  State,  in  all  criminal  *  Goodwin  v.  West,  Cro.  Car.  522,  640. 
prosecutions,  and  for  the  defendant,  in  ^  Hex  v.  Sadler,  4  C.  &  P.  218  ;  Black- 
any   inilictnient,  without  any  tender  or  burne  v.  Hargreave,  2  Lewin,  Cr.   Cas. 
payment  of  fees.     2  Rev.   Stat.   p.   729,  2.59  [Robinson  v.  Trull,  4  Cush.  249]. 
§  05;  Chamberlain's  case,  4  Cowen,  49.  «  2  Pliil.  Evid.  879,  383. 
In  Pennsylvania,  the  person  accused  may 


CH.\P.  I.]  ATTENDANCE  OF  WITNESSES.  373 

cannot  obtain,  he  may  be  brought  into  court  to  testify  by  a  writ 
of  habeas  corpus  ad  testificandum.  This  writ  is  grantable  at  dis- 
cretion, on  motion  in  open  court,  or  by  any  judge,  at  chambers, 
who  has  general  authority  to  issue  a  writ  of  habeas  corpus.  The 
application,  in  civil  cases,  is  made  upon  afifidavit,  stating  the 
"nature  of  the  suit,  and  the  materiality  of  the  testimony,  as  the 
pai ty  is  advised  by  his  counsel  and  verily  believes,  together  with 
the  fact  and  general  circumstances  of  restraint,  which  call  for 
the  issuing  of  the  writ ;  and  if  he  is  not  actually  a  prisoner,  it 
should  state  his  willingness  to  attend.^  In  criminal  cases,  no 
affidavit  is  deemed  necessary  on  the  part  of  the  prosecuting  attor- 
ney. The  writ  is  left  with  the  sheriff,  if  the  witness  is  in  cus- 
tody ;  but  if  he  is  in  the  military  or  naval  service,  it  is  left  with 
the  officer  in  immediate  command;  to  be  served,  obeyed,  and 
returned,  like  any  other  writ  of  habeas  corpus."^  If  the  witness 
is  a  prisoner  of  war,  he  cannot  be  brought  up  but  by  an  order 
from  the  Secretary  of  State ;  but  a  rule  may  be  granted  on  the 
adverse  party,  to  show  cause  why  he  should  not  consent  either  to 
admit  the  fact,  or  that  the  prisoner  should  be  examined  upon 
interrogatories.^ 

§  313.  Recognizance.  There  is  another  method  by  which  the 
attendance  of  witnesses  for  the  government,  in  criminal  cases,  is 
enforced,  namely,  by  recognizance.  This  is  the  usual  course  upon 
all  examinations,  where  the  party  accused  is  committed,  or  is 
bound  over  for  trial.  And  any  witness,  whom  the  magistrate  may 
order  to  recognize  for  his  own  appearance  at  the  trial,  if  he  re- 
fuses so  to  do,  may  be  committed.  Sureties  are  not  usually 
demanded,  though  they  may  be  required,  at  the  magistrate's  dis- 
cretion ;  but  if  they  cannot  be  obtained  by  the  witness,  when 
required,  his  own  recognizance  must  be  taken.* 

§  314.  Time  of  service  of  subpoena.  The  Service  of  a  subpoena 
upon  a  witness  ought  always  to  be  made  in  a  reasonable  time  be- 
fore trial,  to  enable  him  to  put  his  affairs  in  such  order,  that  his 

1  Eex  V.  Roddam,  Cowp.  672.  States,  authority  is  given  by  statute,  to 

2  2  Phil.  Evid.  374,  375 ;  Conkling's  commit  a  witness  wlio  refuses  or  fails  to 
Pr.  264 ;  1  Paine  &  Duer's  Pr.  503,  504 ;  give  tlie  recognizance  required  by  tlie 
2  Tidd's  Pr.  809.  court  or  magistrate;  and  the  practice  is 

3  Farly  v.  Newnham,  2  Doug.  410.  '        in  accordance  witli  the  authority,  and  an 
*  2  Hale,  P.  C.  282 ;  Bennett  v.  Wat-     allowance  is  made  to  the  witnesses   for 

8on,  3  M.  &  S.  1 ;  1  Stark.  Evid.  82  ;  Ros-  the    time    that    they   are    so   detained, 

coe's  Crim.  Evid.  p.  87 ;  Evans  v.  Rees.  Laws  U.   S.   1846,  c.  98,  §  7  (9  Stat,  at 

12  Ad.  &  El.  55.     [In  the  United  States  Large,  L.  &  B.'s  ed.),  73.] 
courts,  and,   generally,  in   the    several 


374 


LAW   OF  EVIDENCE. 


[PABT  in. 


attendance  upon  the  court  may  be  as  little  detrimental  as  possible 
to  his  interest.^  On  this  principle,  a  summons  in  the  morning  to 
attend  in  the  afternoon  of  the  same  day  has  been  held  insufficient, 
though  the  witness  lived  in  the  same  town,  and  very  near  to  the 
place  of  trial.  In  the  United  States,  the  reasonableness  of  the 
time  is  generally  fixed  by  statute,  requiring  an  allowance  of  one 
day  for  every  certain  number  of  miles  distance  from  the  wit- 
ness's residence  to  the  place  of  trial ;  and  this  is  usually  twenty 
miles.  But  at  least  one  day's  notice  is  deemed  necessary,  how- 
ever inconsiderable  the  distance  may  be.^ 

§  315.  Manner  of  service.  As  to  the  manner  of  service,  in  order 
to  compel  the  attendance  of  the  witness,  it  should  be  personal, 
since,  otherwise,  he  cannot  be  chargeable  with  a  contempt  in  not 
appearing  upon  the  summons.^  The  subpoena  is  plainly  of  no 
force  beyond  the  jurisdictional  limits  of  the  court  in  which  the 
action  is  pending,  and  from  which  it  issued  ;  but  the  courts  of 
the  United  States,  sitting  in  any  district,  are  empowered  by 
statute,*  to  send  subpoenas  for  witnesses,  into  any  other  district, 
provided  that,  in  civil  causes,  the  witness  do  not  live  at  a  greater 
distance  than  one  hundred  miles  from  the  place  of  trial.^ 

§  316.  Protection  from  arrest.  Witnesses  as  well  as  parties  are 
protected  from  arrest  while  going  to  the  place  of  trial,  while 
attending  there,  for  the  purpose  of  testifying  in  the  cause,  and 
while  returning  home,  eundo,  morando,  et  redeundo.^     A  subpoena 


1  Hammond  v.  Stewart,  1  Stra.  510. 

2  Sims  V.  Kitclien,  5  Esp.  46 ;  2  Tidd's 
Pr.  806 ;  3  Chitty's  Gen.  Pr.  801 ;  1  Paine 
&  Duer's  Pr.  497  [Scammon  v.  Scammon, 
83  N.  H.  62]. 

3  In  some  of  the  United  States,  as  well 
as  in  England,  a  subpoena  ticket,  which 
ie  a  copy  of  the  writ,  or  more  properly  a 
statement  of  its  substance,  duly  certified, 
is  delivered  to  the  witness,  at  the  same 
time  that  the  writ  is  sliown  to  liim.  1 
Paine  &  Duer's  Pr.  4%  ;  1  Tidd's  Pr. 
800  ;  1  Stark.  Ev.  77  ;  Phil.  &  Am.  on 
Evid.  781,  782;  2  Phil.  Evid.  373.  But 
the  general  practice  is  believed  to  be, 
either  to  show  the  subpoena  to  the  wit- 
ness, or  to  serve  him  with  an  attested 
copy.  The  writ,  being  directed  to  the 
witness  himself,  may  be  shown  or  deliv- 
ered to  him  by  a  private  person,  and  the 
service  proved  by  affidavit ;  or  it  may  be 
served  by  the  sheriff's  oflScer,  and  proved 
by  his  official  return. 

4  Stat.   1793,  c.   60   [22],  §  6 ;  1  LL. 


U.  S.  p.  312  (Story's  ed.)  [1  U.  S.  Stats. 
at  Large  (L.  &  B.'s  ed.),  3o5]. 

5  In  most  of  the  States,  there  are  pro- 
visions by  statute,  for  taking  the  deposi- 
tions of  witnesses,  who  live  more  than  a 
specified  number  of  miles  from  the  place 
of  trial.  But  these  regulations  are  made 
for  the  convenience  of  the  parties,  and 
do  not  absolve  the  witness  from  tlie  obli- 
gation of  personal  attendance  at  the 
court,  at  whatever  distance  it  be  holden, 
if  he  resides  within  its  jurisdiction,  and 
is  duly  summoned.  In  Gcorcjia,  the  depo- 
sitions of  females  may  be  taken  in  all 
civil  cases.  Rev.  St.  1815  (by  Hotch- 
kiss),  p.  586. 

8  This  rule  of  protection  vras  laid 
down,  upon  deliberation,  in  the  case  of 
Meekins  v.  Smith,  1  H.  Bl.  636,  as  extend- 
ing to  "  all  persons  who  had  relation  to 
a  suit,  whicii  called  for  their  attendance, 
whether  they  were  compelled  to  attend 
by  process  or  not  (in  wiiich  number  bail 
were  included),  proviiled  they  came  bona 


CHAP.  I.]  ATTENDANCE  OF  WITNESSES.  375 

is  not  necessary  to  protection,  if  the  witness  have  consented  to 
go  without  one  ;  nor  is  a  writ  of  protection  essential  for  this  pur- 
pose ;  its  principal  use  being  to  prevent  the  trouble  of  an  arrest, 
and  an  application  for  discharge,  by  showing  it  to  the  arresting 
officer ;  and  sometimes,  especially  where  a  writ  of  protection  is 
shown,  to  subject  the  officer  to  punishment,  for  contempt.^  Pre- 
venting, or  using  means  to  prevent,  a  witness  from  attending 
court,  who  has  been  duly  summoned,  is  also  punishable  as  a  con- 
tempt of  coui't.2  On  the  same  princijjle,  it  is  deemed  as  a  con- 
tempt to  serve  process  upon  a  witness,  even  by  summons,  if  it  be 
done  in  the  immediate  or  constructive  presence  of  the  court  upon 
which  he  is  attending ;  ^  though  any  service  elsewhere  without 
personal  restraint,  it  seems,  is  good.  But  this  freedom  from 
arrest  is  a  personal  privilege,  which  the  party  may  waive  ;  and  if 
he  willingly  submits  himself  to  the  custody  of  the  officer,  he 
cannot  afterwards  object  to  the  imprisonment,  as  unlawful.^  The 
privilege  of  exemption  from  arrest  does  not  extend  through  the 
whole  sitting  or  term  of  the  court,  at  which  the  witness  is  sum- 
moned to  attend ;  but  it  continues  during  the  space  of  time  neces- 
sarily and  reasonably  employed  in  going  to  the  place  of  trial, 
staying  there  until  the  trial  is  ended,  and  returning  home  again. 
In  making  this  allowance  of  time,  the  courts  are  disposed  to  be 
liberal ;  but  unreasonable  loitering  and  deviation  from  the  way 
will  not  be  permitted.^  But  a  witness  is  not  privileged  fi-om 
arrest  by  his  bail,  on  his  return  from  giving  evidence  ;  and  if  he 
has  absconded  from  his  bail,  he  may  be  retaken,  even  during  his 
attendance  at  court.^ 

§  317.  Same  subject.  This  privilege  is  granted  in  all  cases 
where  the  attendance  of  the  party  or  witness  is  given  in  any 
matter  pending  before  a  lawful  tribunal  having  jurisdiction  of  the 

fide."    Randall  v.  Gurney,  3  B.  &  Aid.  Blight  v.  Fisher,   1   Peters,   C.   C.   41 ; 

252 ;  Hurst's  case,  4  Dal.  387.     It  extends  Miles  v.  McCuUough,  1  Binn.  77. 

to  a  witness  coming  from  abroad,  with-  *  Brown  v.  Getchell,  11  Mass.  11,  14; 

out  a  subpoena.     1  Tidd's  Pr.  195,  196 ;  Geyer  v.  Irwin,  4  Dall.  107. 

Norris  v.  Beach,  2  Johns.  294.  ^  Meekins  v.  Smith,  1  H.  Bl.  636 ;  Han- 

1  Meekins  v.  Smith,  1  H.  Bl.  636 ;  dall  v.  Gurney,  3  B.  &  Aid.  252 ;  Willing- 
Arding  v.  Flower,  8  T.  R.  536  ;  Norris  v.  ham  v.  Matthews,  2  Marsh.  57  ;  Lightfoot 
Beach,  2  Johns.  294;  United  States  v.  r.  Cameron,  2  W.  Bl.  1113  ;  Selbyy.  Hills, 
Edrae,  9  S.  &  R.  147;  Sanford  v.  Chase,  8  Bing.  166;  Hurst's  case,  4  Dall.  387; 
3  Cowen,  381 ;  Bours  v.  Tuckerman,  7  Smythe  v.  Banks,  4  Dall.  329  ;  1  Tidd's 
Johns.  538.  [But  see  Ex  parte  McNeil,  3  Pr.  195-197;  Phil.  &  Am.  on  Evid.  782, 
Mass.  288,  and  6  Mass.  264,  contra]  783 ;  2  Phil.  Evid.  374. 

2  Commonwealth  v.  Freely,  2  Virg.  6  1  Tidd's  Pr.  197 ;  Ex  parte  Lyne,  3 
Gas.  1.  Stark.  470. 

3  Cole  V.   Hawkins,    Andrews,    275; 


876  LAW   OF  EVIDENCE.  [PAET  HI. 

cause.  Thus  it  has  been  extended  to  a  party  attending  on  an 
arbitration,  under  a  rule  of  court ;  ^  or  on  the  execution  of  a  writ 
of  inquiry ;  ^  to  a  bankrupt  and  witnesses,  attending  before  the 
commissioners,  on  notice ;  ^  and  to  a  witness  attending  before  a 
magistrate,  to  give  his  deposition  under  an  order  of  court.* 

§  318.  Same  subject.  If  a  person  thus  clearly  entitled  to  privi- 
lege is  unlau'fidly  arrested,  the  court,  in  which  the  cause  is  t--  be, 
or  has  been,  tried,  if  it  have  power,  will  discharge  him  upon 
motion ;  and  not  put  him  to  the  necessity  of  suing  out  process 
for  that  purjDose,  or  of  filing  common  bail.  But  otherwise,  and 
"where  the  question  of  privilege  is  doubtful,  the  court  will  not 
discharge  him  out  of  custody  upon  motion,  but  will  leave  him  to 
his  remedy  by  Avrit ;  and  in  either  case  the  trial  will  be  put  off 
until  he  is  released.^ 

§  319.  Neglect  of  witness  to  attend  contempt.  Where  a  witness 
has  been  duly  summoned,  and  his  fees  paid  or  tendered,  or  the 
payment  or  tender  waived,  if  he  wilfully  neglects  to  appear,  he  is 
guilty  of  a  contempt  of  the  process  of  court,  and  may  be  pro- 
ceeded against  by  an  attachment.^  It  has  sometimes  been  held 
necessary  that  the  cause  should  be  called  on  for  trial,  the  jury 
Bworn,  and  the  witness  called  to  testify ;  "^  but  the  better  opinion 
is,  that  the  witness  is  to  be  deemed  guilty  of  contempt,  whenever 
it  is  distinctly  shown  that  he  is  absent  from  court  with  intent  to 
disobey  the  writ  of  suhijoena  ;  and  that  the  calling  of  him  in 
court  is  of  no  other  use  than  to  obtain  clear  evidence  of  his 
having  neglected  to  appear ;  but  that  is  not  necessary,  if  it  can 
be  clearly  shown  by  other  means  that  he  has  disobeyed  the  order 
of  court.^  An  attachment  for  contempt  proceeds  not  upon  the 
ground  of  any  damage  sustained  by  an  individual,  but  is  insti- 
tuted to  vindicate  the  dignity  of  the  court ;  ^  and  it  is  said,  that 

1  Spence  v.  Stuart,  3  East,  89  j  San-  the  same  day,  on  a  witness,  requiring  his 
ford  V.  Ciiase,  3  Cowen,  381.  attendance   at   different    places,    distant 

2  Walters  v.  Kees,  4  J.  B.  Moore,  34.  from   eacli   other,    it   was  held,  that  he 

3  Arding  r.  Flower,  8  T.  R.  534;  1  might  make  his  election  whicii  he  will 
Tidil's  Pr.  197.  obey.    Icehour  v.  Martin,  Busbee  (N.  C), 

*  Ex  parte  Edme,  9  S.  &  R.  147.  [Or  Law,  478.  [The  duty  attaches  upon  the 
commissioners  on  the  estate  of  insolvent  delivery  of  the  summons,  and  it  would 
persim  deceased.  Woody.  Neale, 5  Gray,  seem  that  the  earliest  summons  must  be 
638.]  first  obeved.] 

5  1   Tidd's  Pr.  107,  216 ;    2  Paine  &  ^  Bland  v.  Swafford,  Peake's  Cas.  60 

Duer's   Pr.  6,  10;  Hurst's  case,  4  Dall.  8  Barrow  v.  Humphreys,  3  B.  &  Aid. 

887  ;  Ex  parte  Edme,  9  S.  &  R.  147  ;  San-  598 ;  2  Tidd's  Pr.  808. 
ford  1-.  Chase,  3  Cowen,  381  [Seaver  v.         »  3  B.  &  Aid.  600,  per  Best,  J.   Where 

Kobinson,  3  Duer,  622|.  a  justice  of  the  peace  lias  power  to  bind 

*  Where  two  subpuenas  were   served  a  witness  by  recognizance  to  appear  at  a 


CHAP.  I.] 


ATTENDAKCE  OF  WITNESSES. 


377 


it  must  be  a  perfectly  clear  case  to  call  for  the  exercise  of  this 
extraordinary  jurisdiction.^  The  motion  for  an  attachment  should 
therefore  be  brought  forward  as  soon  as  possible,  and  the  party 
applying  must  show,  by  affidavits  or  otherwise,  that  the  subpoena 
was  seasonably  and  personally  served  on  the  witness,  that  his 
fees  were  paid  or  tendered,  or  the  tender  expressly  waived,  and 
that  every  thing  has  been  done  which  was  necessary  to  call  for 
his  attendance.2  But  if  it  appears  that  the  testimony  of  the 
witness  could  not  have  been  material,  the  rule  for  an  attachment 
will  not  be  granted.^  If  a  case  of  palpable  contempt  is  shown, 
such  as  an  express  and  positive  refusal  to  attend,  the  court  will 
grant  an  attachment  in  the  first  instance ;  otherwise,  the  usual 
course  is  to  grant  a  rule  to  show  cause.*  It  is  hardly  necessary 
to  add,  that  if  a  witness,  being  present  in  court,  refuses  to  be 
sworn  or  to  testify,  he  is  guilty  of  contempt.  In  all  cases  of 
contempt,  the  punishment  is  by  fine  and  imprisonment,  at  the 
discretion  of  the  court.^ 

§  320.  Depositions.  If  the  witness  resides  abroad^  out  of  the 
jurisdiction,  and  refuses  to  attend,  or  is  sick  and  unable  to  attend^ 
his  testimony  can  be  obtained  only  by  taking  his  deposition  before 
a  magistrate,  or  before  a  commissioner  duly  authorized  by  an 


higher  court,  he  may  compel  his  attend- 
ance before  himself  for  that  purpose  by 
attachment.  Bennett  v.  Watson,  3  M.  & 
S.  1 ;  2  Hale,  P.  C.  282 ;  Evans  v.  Eees, 
12  Ad.  &  El.  55 ;  supra,  §  313. 

1  Home  V.  Smith,  6  Taunt.  10,  11  ; 
Garden  v.  Creswell,  2  M.  &  W.  319 ;  Kex 
V.  Lord  J.  Russell,  7  Dowl.  693. 

'^  2  Tidd's  Pr.  807,  808;  Garden  v. 
Creswell,  2  M.  &  W.  319;  1  Paine  & 
Duer's  Pr.  499,  500 ;  Conkling's  Pr.  265. 

3  Dicas  V.  Lawson,  1  Cr.  M.  &  R.  934. 
[The  court  will  not  compel  tlie  attendance 
of  an  interpreter  or  expert,  who  has  neg- 
lected to  obey  a  subpoena,  unless  in  case 
of  necessity.  In  the  Matter  of  Roelker, 
Sprague's  Decisions,  276.  If  tlie  witness 
has  reasonable  ground  to  believe  that 
he  will  not  be  wanted  at  the  trial  (Reg. 
I".  Sloman,  TDowl.  618) ;  or  has  been  ex- 
cused by  the  attorney  of  the  party  who 
summoned  liim  (Farrah  v.  Keats,  6  Dowl. 
470) ;  or  is  too  poor  (2  Ph.  Ev.  388),  —  no 
attachment  will  lie.  But  a  witness  who 
is  duly  summoned  takes  the  risk  if  he 
does  not  attend  so  early  as  he  might 
under  the  summons,  thinking  to  be  able 
to  attend  to  some  other  matter  before  he 
goes  to  court.  Jackson  v.  Seager,  2  D. 
&  L.  13.    If,  however,  it  appears  that  the 


witness  intentionally  defied  the  process 
of  the  court,  the  fact  that  his  evidence 
would  have  been  immaterial  will  not  re- 
lease him  from  the  liability  to  attach- 
ment. Chapman  v.  Davis,  3  M.  &  S. 
609,  Scholes  v.  Hilton,  10  M.  &  W.  16, 
apparently  overruling  Timlay  v.  Porter, 
5  Dowl.  744,  and  Taylor  v.  Williams,  4 
M.  &  P.  59.] 

*  Anon.,  Salk.  84;  4  Bl.  Comm.  286, 
287;  Rex  v.  Jones,  1  Stra.  185;  Jackson 
V.  Mann,  2  Caines,  92;  Andrews  y.  An- 
drews, 2  Johns.  Ca's.  109;  Thomas  v. 
Cummins,  1  Yeates,  1 ;  Conkling's  Pr. 
265;  1  Paine  &  Duer's  Pr.  500;  2  Tidd's 
Pr.  807,  808.  The  party  injured  by  the 
non-attendance  of  a  witness  has  also  liis 
remedy,  by  action  on  the  case  for  dam- 
ages, at  common  law  ;  and  a  further  rem- 
edy, by  action  of  debt,  is  given  by  Stat.  5 
Eliz.  c.  9 ;  but  these  are  deemed  foreign 
to  the  object  of  this  work.  [Yeatman  v. 
Dempsey,  7  C.  B.  n.  8.  628.  See  also 
Knott  V.  Smith,  2  Sneed  (Tenn.),  244; 
Lane  v.  Cole,  12  Barb.  (N.  Y.)  268.  In 
Massachusetts,  also,  by  statute.  Robin- 
son V.  Trull,  4  Cush.  (Mass.)  249.] 

5  4  Bl.  Comm.  286,  287 ;  Rex  v.  Beard 
more,  2  Burr.  792. 


378  LAW   OF  EVIDENCE.  [PART  lU. 

order  of  the  court  where  the  cause  is  pending ;  and  if  the  com- 
missioner is  not  a  judge  or  magistrate,  it  is  usual  to  require  that 
he  be  first  sworn.^  This  method  of  obtaining  testimony  from 
witnesses,  in  a  foreign  country,  has  always  been  familiar  in  the 
courts  of  admiralty ;  but  it  is  also  deemed  to  be  witliin  the  in- 
herent powers  of  all  courts  of  justice.  For,  by  the  law  of  nations, 
courts  of  justice,  of  different  countries,  are  bound  mutually  to 
aid  and  assist  each  other,  for  the  furtherance  of  justice ;  and 
hence,  when  tlie  testimony  of  a  foreign  witness  is  necessary,  the 
court  before  which  the  action  is  pending  may  send  to  the  court 
within  whose  jurisdiction  the  witness  resides,  a  writ,  either  patent 
or  close,  usually  termed  a  letter  rogatory,  or  a  commission  sub 
mutuce  vicissitudmis  obtentu  ac  in  juris  subsidium,  from  those 
words  contained  in  it.  By  this  instrument,  the  court  abroad  is 
informed  of  the  pendency  of  the  cause,  and  the  names  of  the 
foreign  witnesses,  and  is  requested  to  cause  their  depositions  to 
be  taken  in  due  course  of  law,  for  the  furtherance  of  justice ; 
with  an  offer,  on  the  part  of  the  tribunal  making  the  request,  to 
do  the  like  for  the  other,  in  a  similar  case.  The  writ  or  commis- 
sion is  usually  accompanied  by  interrogatories,  filed  by  the  par- 
ties on  each  side,  to  which  the  answers  of  the  witnesses  are 
desired.  The  commission  is  executed  by  the  judge,  who  receives 
it,  either  by  calling  the  witness  before  himself,  or  by  the  inter- 
vention of  a  commissioner  for  that  purpose ;  and  the  original 
answers,  duly  signed  and  sworn  to  by  the  deponent,  and  properly 
authenticated,  are  returned  with  the  commission  to  the  court 
from  which  it  issued.^     The  court  of  chancery  has  always  freely 

1  Ponsford  v.  O'Connor,  5  M.  &  W.             United  States  of  America. 
673 ;  Clay  v.  Stephenson,  3  Ad.  &  El.  District  of ss. 

2  See  Clerk's  Praxis,  tit.  27 ;  Cunning-  The  President  of  the  United  States,  to 
ham  V.  Otis.  1  Gal.  166  ;  Hall's  Adm.  Pr.  any  judge  or  tribunal  having  jurisdiction 
part  2,  tit.  19,  cum.  add.,  and  tit.  27,  cum.  of  civil  causes,  in  the  city  (or  i)rovince)  of 

add.,  pp.  37,  38,  55-60 ;  Oughton's  Ordo     : '  »"  ^'^^  kingdom  of ,  Greet- 

Judiciorum,  vol.  i.  pp.  150-152,  tit.  95,  i"&:  — 
96.     See  also  Id.  pp.  139-149,  tit.  88-94. 
The  general  practice,  in  tlie  foreign  con- 
tinental courts,  is,  to  retain  the  original 
deposition,  which  is  entered  of  record,  re- 


Whereas    a    certain    suit    is 

pending  in  our Court  for 

the  district  of « — ,  in  which 

A.  B.  is  plaintiff  for  claimant, 

turning  a  copy  duly  authenticated.     But     against  the  ship ],  and  C.  D.  is  de- 

in  the  common-law  courts,  the  production  fendant,  and  it  has  been  suggested  to  us 
of  the  original  is  generally  required.  Clay  that  there  are  witnes.ses  residing  within 
V.  Stephenson,  7  Ad.  &  El.  185.  The  your  jurisdiction,  without  whose  testi- 
practice,  however,  is  not  uniform.  See  niony  justice  cannot  completely  be  done 
an  early  instance  of  letters  rogatory,  in  1  between  the  said  parties;  we  therefore 
Roll.  Abr.  530,  pi.  15.  temp.  Ed.  I.  The  request  you  that,  in  futherance  of  jus- 
following  form  may  be  found  in  1  Peters,  tice,  you  will,  by  the  projjcr  and  usual 
C.  C.  236,  n.  (u) :  —  process  of  your  court,  cause  eucli  witness 


CHAP.  I.] 


ATTENDANCE  OF   WTTNESSES. 


879 


exercised  tliis  power,  by  a  commission,  either  directed  to  foreign 
magistrates,  by  their  official  designation,  or,  more  usually,  to  in- 
dividuals by  name ;  which  latter  course,  the  peculiar  nature  of 
its  jurisdiction  and  proceedings  enables  it  to  produce  the  parties 
to  adopt,  by  consent,  where  any  doubt  exists  as  to  its  inherent 
authority.  The  courts  of  common  law  in  England  seem  not  to 
have  asserted  this  power  in  a  direct  manner,  and  of  their  own 
authority  ;  but  have  been  in  the  habit  of  using  indirect  means,  to 
coerce  the  adverse  party  into  a  consent  to  the  examination  of 
witnesses,  who  were  absent  in  foreign  countries,  under  a  commis- 
sion for  that  purpose.  These  means  of  coercion  were  various ; 
such  as  putting  off  the  trial,  or  refusing  to  enter  judgment,  as  in 
case  of  nonsuit,  if  the  defendant  was  the  recusant  party ;  or  by  a 
stay  of  proceedings,  till  the  party  applying  for  the  commission 
could  have  recourse  to  a  court  of  equity,  by  instituting  a  new 
suit  there,  auxiliary  to  the  suit  at  law.^  But,  subsequently,  the 
learned  judges  appear  not  to  have  been  satisfied  that  it  was 
proper  for  them  to  compel  a  party,  by  indirect  means,  to  do  that 
which  they  had  no  authority  to  compel  him  to  do  directly ;  and 
they  accordingly  refused  to  put  off  a  trial  for  that  purpose.'^  This 
inconvenience  was  therefore  remedied  by  statutes,^  which  provide 


or  witnesses  as  shall  be  named  or  pointed 
out  to  you  by  the  said  parties,  or  either 
of  them,  to  appear  before  you,  or  some 
competent  person  by  you  for  that  pur- 
pose to  be  appointed  and  authorized,  at 
a  precise  time  and  place,  by  you  to  be 
fixed,  and  there  to  answer,  on  their  oaths 
and  affirmations,  to  the  several  interroga- 
tories hereunto  annexed ;  and  that  you 
will  cause  their  depositions  to  be  com- 
mitted to  writing,  and  returned  to  us 
under  cover,  duly  closed  and  sealed  up, 
together  with  these  presents.  And  we 
shall  be  ready  and  willing  to  do  the  same 
for  you  in  a  similar  case,  when  required. 
Witness,  &c. 

1  Furly  V.  Newnham,  Doug.  419 ; 
Anon.,  cited  in  Mostvn  u.  Fabrigas,  Cowp. 
174 ;  2  Tidd's  Pr.  770,  810. 

2  Cailland  v.  Vaughan,  1  B.  &  P.  210. 
See  also  Grant  v.  Ridley,  5  Man.  &  Grang. 
203,  per  Tindal,  C.  J  ;  Macaulay  v.  Shack- 
ell,  1  Bligh,  N.  s.  119,  130,  131. 

3  13  Geo.  Ill  c.  63,  and  1  "W.  IV. 
c.  22  ;  Report  of  Commissioners  on  Chan- 
cery Practice,  p.  109;  Second  Report  of 
Commissioners  on  Courts  of  Common 
Law,  pp.  23,  24.  [In  Castelli  ;;.  Groome, 
12  Eng.  Law  &  Eq.  426  (16  Jur.  88),  it 
was  held,  that  the  court  would  not  exercise 
its  discretion  to  grant  the  commission  to 


examine  parties  to  the  action  under  1 
W.  IV.  c.  22,  unless  it  is  shown,  by  the 
party  applying  therefor,  that  it  is  neces- 
sary to  the  due  administration  of  justice; 
and  that  it  is  not  enough  to  show  that  the 
plaintiff  ordefendantlives  outof  tlie  juris- 
diction of  the  court ;  Lord  Campbell,  C.  J., 
saying,  "it  would  lead  to  most  vexatious 
consequences,  if  constant  recourse  could 
be  liad  to  this  power ;  and  it  would  be  so, 
in  all  cases  where  the  parties  wished  to 
avoid  the  process  of  examination  here." 
Compton,  J.,  said,  "  The  only  question  in 
my  mind  was,  whether  it  was  discre- 
tionary or  not  to  grant  the  rule,  hut  that 
has  been  settled  by  Ducket  v.  Williams, 
1  Cr.  &  J.  510,  8.  c.  y  Law  J.  Exch. 
177,  and  it  has  always  been  held  so. 
Formerly  there  was  great  difficulty  in 
getting  the  commission  allowed,  and  a 
plaintiff  could  only  get  it  by  resorting  to 
equity.  To  remedy  this  inconvenience 
the  act  was  passed."  For  cases  under 
this  statute,  see  Bolin  v.  Mellidew,  5  Eng. 
Law  &  Eq.  387,  as  to  practice  in  exe- 
cuting commissions  abroad  in  administer- 
ing oaths  under  foreign  law;  Lumley  w. 
Gye,  22  Id.  367,  in  a  case  where  the  mode 
of  examination  differs  from  tlie  English 
practice,  and  issuing  a  frcsli  commission 
whe$e  the  former  commission  was  in* 


380  LAW   OF  EVIDENCE.  [PAKT  IH. 

that,  in  all  cases  of  tlie  absence  of  witnesses,  whether  by  sickness, 
or  travelling  out  of  the  jurisdiction,  or  residence  abroad,  the 
courts,  in  their  discretion,  for  the  due  administration  of  justice, 
may  cause  the  witnesses  to  be  examined  under  a  commission 
issued  for  that  purpose.  In  general,  the  examination  is  made  by 
interrogatories,  previously  prepared ;  but,  in  proper  cases,  the 
witnesses  may  be  examined  viva  voce^  by  the  commissioner,  who 
in  that  case  writes  down  the  testimony  given ;  or  he  may  be  exam- 
ined partly  in  that  manner  and  partly  upon  interrogatories.^ 

§  321.  Same  subject.  In  the  United  States,  provisions  have 
existed  in  the  statutes  of  the  several  States,  from  a  very  early 
period,  for  the  taking  of  depositions  to  be  used  in  civil  actions  in 
the  courts  of  law,  in  all  cases  where  the  personal  attendance  of 
the  witness  could  not  be  had,  by  reason  of  sickness  or  other  in- 
ability to  attend ;  and  also  in  cases  where  the  witness  is  about  to 
sail  on  a  foreign  voyage,  or  to  take  a  journey  out  of  the  jurisdic- 
tion, and  not  to  return  before  the  time  of  trial.^  Similar  provi- 
sions have  also  been  made  in  many  of  the  United  States  for 
taking  the  depositions  of  witnesses  in  perpetuam  rei  mejiioriam, 
without  the  aid  of  a  court  of  equity,  in  cases  where  no  action  is 
pending.  In  these  latter  cases  there  is  some  diversity  in  the 
statutory  provisions,  in  regard  to  the  magistrates  before  whom  the 
depositions  may  be  taken,  and  in  regard  to  some  of  the  modes  of 
proceeding,  the  details  of  which  are  not  within  the  scope  of  this 
treatise.  It  may  suffice  to  state  that,  generally,  notice  must  be 
previously  given  to  all  persons  known  to  be  interested  in  the 
subject-matter  to  wliich  the  testimony  is  to  relate  ;  that  the  names 
of  the  persons  thus  summoned  must  be  mentioned  in  the  magis- 

eflTectual,  by  reason  of  the  refusal  of  the  much  to  do  in  determining  tlie  weight  of 

witness  to  answer.     In  Davis  v.  Barrett,  evidence.     Markey  v.  Mut.  Ben.  Life  Ins. 

7    Id.   '207,   the    commissioners'    return,  Co.,  103  Mass.  78;  The  Queen  v.  Bert- 

which  omitteil  to  state  tliat  the  commis-  rand,  L.  R.  1  P.  C.  585]. 
sioners  and  tlieir  clerlts  liad   taken  the  ^  See  Stat.  United  States,  1812,  c.  25, 

oaths,  and  wlicre  tlie  commissionerjj  had  §  3  [2  Stat,  at  Large  (L  &  B.'s  ed.),  6821. 

not  signed  the  interrogatories,  was  allowed  In  several  of  the  United  States,  deposi- 

to  be  amended  in  these  several  particu-  tions  may,  in  certain  contingencies,  be 

lars-l  taken  and  used  in  criminal  cases.      See 

1  2  Tidd's  Pr.  810,  811 ;  1  Stark.  Evid.  Arknnsus  Kev.  Stat.  1837,  c.  44,  p.  2:W 

274-278;  Phil.  &  Am.  on  Evid.  pp.  790-  Indiana  Kev.  Stat.  1848,  c.  54,  §§  3'.»,  41 

8(X)  ;    2    Phil.    Evid.    38(5-388;    Pole    v.  ./1//.ssoi(n  Hev.  Stat.  1846,  c.  138,  VS  H,  14 

Kogers,  3  Bing.  N.  C.  780  [Solaman  v.  Jnwa  Bev.  Code,  1851,  c.  190,  "l!)l.     [In 

Cohen,  3  Eng.  Law  &  E(j.  585.     Deposi-  Massachusetts,  Xhe  defendant,  •Aht.'T  SiX\\ss\ie 

tions,  and  written  reports  of  evidence  on  of  fact  is  joined  on  the  indictment,  may 

exceptions    or    otherwise    to    appellate  have  a  commission  to  take  the  testimony 

courts,  are  a  much  inferior  sort  of  evi-  of  a  material  witness  residing  out  of  the 

dence  to  vivn  voce,  testimony.     The  man-  State.     Hev.  Stat.  c.  130,  §  32;  Acts  ol 

ner,  tone,  and  bearing  of  a  witness  have  1861,  c.  71.J 


Ca.VP.  I.]  ATTENDANCE  OF   WITNESSES.  381 

trate's  certificate  or  caption,  appended  to  the  deposition  ;  and  that 
the  deposition  is  admissible  only  in  case  of  the  death  or  inca- 
pacity of  the  witness,^  and  against  those  only  who  have  had  oppor- 
tunity to  cross-examine,  and  those  in  privity  with  them. 

§  '322.  Same  subject.  In  regard,  also,  to  the  other  class  of  depo- 
sitions, namely,  those  taken  in  civil  causes,  under  the  statutes 
alluded  to,  there  are  similar  diversities  in  the  forms  of  proceeding. 
In  some  of  the  States,  the  judges  of  the  courts  of  law  are  empow- 
ered to  issue  commissions,  at  chambers,  in  their  discretion,  for 
the  examination  of  witnesses  unable  or  not  compellable  to  attend, 
from  any  cause  whatever.  In  others,  though  with  the  like 
diversities  in  form,  the  party  himself  may,  on  application  to  any 
magistrate,  cause  the  deposition  of  any  witness  to  be  taken,  who 
is  situated  as  described  in  the  acts.  In  their  essential  features 
these  statutes  are  nearly  alike  ;  and  these  features  may  be  col- 
lected from  that  part  of  the  Judiciary  Act  of  the  United  States, 
and  its  supplements,  which  regulate  this  subject.^  By  that  act, 
when  the  testimony  of  a  person  is  necessary  in  any  civil  cause, 
pending  in  a  court  of  the  United  States,  and  the  person  lives 
more  than  a  hundred  miles  ^  from  the  place  of  trial,  or  is  bound 
on  a  voyage  to  sea,  or  is  about  to  go  out  of  the  United  States,  or 
out  of  the  district,  and  more  than  that  distance  from  the  place  of 
trial,  or  is  ancient,  or  very  infirm,  his  deposition  may  be  taken 
de  bene  esse^  before  any  judge  of  any  court  of  the  United  States, 
or  before  any  chancellor  or  judge  of  any  superior  court  of  a  State, 
or  any  judge  of  a  county  court,  or  court  of  common  pleas,  or  any 
mayor  or  chief  magistrate  of  any  city  *  in  the  United  States,  not 
being  of  counsel,  nor  interested  in  the  suit ;  provided  that  a 
notification  from  the  magistrate  before  whom  the  deposition  is  to 
be  taken,  to  the  adverse  party,  to  be  present  at  the  taking,  and 
put  interrogatories,  if  he  think  fit,  be  first  served  on  him  or  his 
attorney,  as  either  may  be  nearest,  if  either  is  within  a  hundred 
miles  of  the  place  of  caption ;  allowing  time,  after  the  service  of 
the  notification,  not  less  than  at  the  rate  of  one  day,  Sundays  exclu- 

^  The  rule  is  the  same  in  equity,  in  Prouty  v.  Buggies,  2  Story,  199  ;  4  Law 

regard  to  depositions  taken  de  bene  esse,  Rep.  161. 

because  of  the  sickness  of  the  witness.  ^  These  distances  are  various  in  the 

Weguelin  v.  Weguelin,  2  Curt.  263.  similar  statutes  of  the  States,  but  are 

2  Stat.  1789,  c.  20,  §  30 ;  Stat.  1793,  generally  thirty  miles,  though  in  some 

c.  p,  §  6  [1  U.  S.  Stats,  at  Large  (L.  &  cases  less. 

B.'s  ed.),  88,  335].     This  provision  is  not  *  In  the  several  States,  this  authority 

peremptory  ;  it  only  enables  the  party  is  generally  delegated  to  justices  of  the 

to  take  the  deposition,  if   he  pleases,  peace. 


382 


LAW   OF  EVIDENCE. 


[part  in. 


sive,  for  every  twenty  miles'  travel.^  The  witness  is  to  be  care- 
fully examined  and  cautioned,  and  sworn  or  affirmed  to  testify 
the  whole  truth,^  and  must  subscribe  the  testimony  by  him  given, 
after  it  has  been  reduced  to  writing  by  the  magistrate,  or  by  the 
deponent  in  his  presence.  The  deposition  so  taken  must  be"  re- 
tained by  the  magistrate,  until  he  shall  deliver  it  with  his  own 
band  into  the  court  for  which  it  is  taken  ;  or  it  must,  together 
with  a  certificate  of  the  causes  or  reasons  for  taking  it,  as  above 
specified,  and  of  the  notice,  if  any,  given  to  the  adverse  party,  be 
by  the  magistrate  sealed  up,  directed  to  the  court,  and  remain 
under  his  seal  until  it  is  opened  in  court.^  And  such  witnesses 
may  be  compelled  to  appear  and  depose  as  above  mentioned,  in 
the  same  manner  as  to  appear  and  testify  in  court.  Depositions, 
thus  taken,  may  be  used  at  the  trial  by  either  party,  whether  the 
witness  was  or  was  not  cross-examined,*  if  it  shall  appear,  to  the 


'  Under  the  Judiciary  Act,  §  30,  there 
must  be  personal  notice  served  upon  the 
adverse  party  ;  service  by  leaving  a  copy 
at  his  place  of  abode  is  not  sufficient. 
Carrington  v.  Stimson,  1  Curtis,  Ct.  Ct. 
437.  The  magistrate  in  his  return  need 
not  state  the  distance  of  the  place  of  resi- 
dence of  the  party  or  his  attorney  from 
the  place  where  the  deposition  was  taken. 
Voce  V.  Lawrence,  4  McLean,  203.  To 
ascertain  the  proper  notice  in  point  of 
time  to  be  given  to  the  adverse  party,  the 
distance  must  be  reckoned  from  the  par- 
ty's residence  to  the  place  of  caption. 
Porter  v.  Pillsbury,  3G  Maine,  278.  Where 
the  certificate  states  simply  that  the  ad- 
verse party  was  not  personally  present,  a 
copy  of  the  notice,  and  of  the  return  of 
service  thereof,  should  be  annexed ;  and 
if  it  is  not  annexed,  and  it  does  not  dis- 
tinctly appear  that  the  adverse  party  was 
present  either  in  person  or  by  counsel,  the 
deposition  will  be  rejected.  Carleton  v. 
Patterson,  9  Foster,  580 ;  see  also  Bow- 
man IK  Sanborn,  6  Id.  87. 

2  Where  the  State  statute  requires  that 
the  deponent  shall  be  sworn  to  testify  to 
the  truth,  the  whole  truth,  &c.,  "relating 
to  the  cause  for  which  the  deposition  is  to  be 
ta!cen,"  the  omission  of  the  magistrate  in 
]ii9  certificate  to  state  that  tlie  witness 
was  so  sworn,  makes  the  deposition  inad- 
missible ;  ami  the  defect  is  not  cured  by 
the  addition  that  "  after  giving  the  depo- 
sition lie  was  duly  sworn  thereto  accord- 
ing to  law."  Parsons  i-.  Huff,  38  Maine, 
137;  Brighton  v.  Walker,  35  Id.  132; 
Fabyan  v.  Adams,  15  N.  H.  371.  It 
Bliould  distinctly  a]>pear  that  the  oath 
was  administered  where  the  witness  was 


examined.  Erskine  v.  Boyd,  35  Maine, 
611. 

2  The  mode  of  transmission  is  not  pre- 
scribed by  the  statute;  and  in  practice  it 
is  usual  to  transmit  depositions  by  post, 
whenever  it  is  most  convenient ;  in  which 
case  the  postages  are  included  in  the 
taxed  costs.  Prouty  r.  Ruggles,  2  Story, 
199 ;  4  Law  Reporter,  101.  Care  must  be 
taken,  however,  to  inform  the  clerk,  by 
a  proper  superscription,  of  the  nature  of 
the  document  enclosed  to  his  care;  for,  if 
opened  by  him  out  of  court,  though  by 
mistake,  it  will  be  rejected.  Beal  v. 
Thompson,  8  Cranch,  70.  Rut  see  Law 
V.  Law,  4  Greenl.  167.  [A  deposition  not 
certified  by  the  magistrate  to  have  been 
signed  by  the  deponent  is  admissible  in 
the  federal  courts.  Voce  v.  Lawrence, 
4  McLean,  203;  but  iinless  it  is  certified 
to  have  been  retained  by  the  magistrate 
until  sealed  up  and  directed  to  the  proper 
court,  it  is  inadmissible  in  such  courts. 
Shankwiker  v.  Reading,  Id.  420.] 

*  Dwight  V.  Linton,  3  Rob.  (La.)  57. 
[Where  the  testimony  of  a  witness  is  sub- 
stantially complete,  a  deposition  (taken 
under  a  State  statute),  duly  signed  and 
certified,  is  not  to  be  rejected,  because  the 
cross-examination  was  unfinished  in  con- 
sequence of  the  sickness  or  death  of  the 
witness.  If  not  so  advanced  as  to  be  sub- 
stantially complete,  it  must  be  rejected. 
Thus,  where  it  appeared  on  the  face  of 
the  deposition  that  the  cross-examination 
was  not  finished,  the  defendant  having 
refused,  in  consequence  of  severe  sick- 
ness, of  which  he  soon  afterwards  died,  to 
answer  the  nineteenth  cross-interrogatory, 
which  only  asked  for  a  more  particular 


CHAP.  I.] 


ATTENDANCE  OP  WITNESSES. 


883 


satisfaction  of  the  court,  that  the  witnesses  are  then  dead,  or  gone 
out  of  the  United  States,^  or  more  than  a  hundred  miles  from  the 
place  of  trial,  or  that  by  reason  of  age,  sickness,  bodily  infirmity, 
or  imprisonment,  they  are  unable  to  travel  and  appear  at  court. 

§  323.  Right  to  give  testimony  by  deposition  strictly  construed. 
The  provisions  of  this  act  being  in  derogation  of  the  common  law, 
it  has  been  held  that  they  must  be  strictly  complied  with.^  B  it 
if  it  appears  on  the  face  of  the  deposition,  or  the  certificate  which 
accompanies  it,  that  the  magistrate  before  whom  it  was  taken  was 
duly  authorized,  within  the  statute,  it  is  sufiicient,  in  the  first 
instance,  without  any  other  proof  of  his  authority ;  ^  and  his  cer- 


Btatement  of  facts  to  which  the  witness 
had  testified,  the  deposition  was  held  to 
have  been  properly  admitted.  Fuller  v. 
Eice,  4  Gray,  343 ;  Valton  v.  National 
Loan,  &c.  Society,  22  Barb.  9.] 

'  In  proof  of  the  absence  of  the  wit- 
ness, it  has  been  held  not  enough  to  give 
evidence  merely  of  inquiries  and  answers 
at  his  residence ;  but,  that  his  absence 
must  be  shown  by  some  one  who  knows 
the  fact.  Robinson  v.  Markis,  2  M.  & 
Rob.  375.  And  see  Hawkins  v.  Brown,  3 
Rob.  (La.)  310  [§  323,  n. ;  Weed  v.  Kel- 
logg, 6  McLean,  44.  Where  the  cause 
of  taking  the  deposition  was  that  the  de- 
ponent was  about  to  leave  the  State,  &c., 
and  a  subpoena  had  been  issued  at  the 
time  of  the  trial,  to  the  deponent,  to  ap- 
pear as  a  witness,  upon  wiiich  a  constable 
of  the  place  where  the  deponent  resided 
had  returned  that  he  made  diligent  in- 
quiry and  search  for  the  witnesss,  and 
could  not  find  him,  it  was  held  to  be  suf- 
ficient proof  of  the  deponent's  absence,  so 
that  the  deposition  could  be  used.  Kin- 
ney V.  Berran,  6  Cush.  394J. 

'^  Bell  V.  Morrison,  1  Peters,  355 ;  The 
"Thomas  &  Henry  "  v.  The  United  States, 
1  Brockenbrough,  367 ;  Nelson  v.  The 
United  States,  1  Peters,  C.  C.  235. 
The  use  of  ex  patie  depositions,  taken 
without  notice,  under  tins  statute,  is  not 
countenanced  by  the  courts,  where  evi- 
dence of  a  more  satisfactory  character  can 
be  obtained.  The  views  of  the  learned 
judges  on  this  subject  have  been  thus  ex- 
pressed by  Mr.  Justice  Grier :  "  While 
we  are  on  this  subject,  it  will  not  he  im- 
proper to  remark,  that  when  the  act  of 
Congress  of  1789  was  passed,  permitting 
er  parte  depositions,  without  notice,  to  be 
taken  where  the  witness  resides  more 
than  a  hundred  miles  from  the  place  of 
trial,  sucli  a  provision  may  have  been 
necessary.  It  then  required  nearly  as 
much  time,  labor,  and  expense  to  travel 
one  hundred  miles   as   it  does  now  to 


travel  one  thousand.  Now  testimony 
may  be  taken  and  returned  from  Califor- 
nia, or  any  part  of  Europe,  on  commis- 
sion, in  two  or  three  months,  and  in  any 
of  the  States  east  of  the  Rocky  Mountains 
in  two  or  three  weeks.  There  is  now  sel- 
dom any  necessity  for  having  recourse  to 
this  mode  of  taking  testimony.  Besides, 
it  is  contrary  to  the  course  of  the  common 
law ;  and,  except  in  cases  of  mere  formal 
proof  (such  as  the  signature  or  execution 
of  an  instrument  of  writing),  or  of  some 
isolated  fact  (such  as  demand  of  a  bill, 
or  notice  to  an  indorser),  testimony  thus 
taken  is  liable  to  great  abuse.  At  best,  it 
is  calculated  to  elicit  only  such  a  partial 
statement  of  the  truth  as  may  have  the 
efTect  of  entire  falsehood.  The  person 
who  prepares  the  witness,  and  examines 
him,  can  generally  have  so  much  or  so 
little  of  the  truth,  or  such  a  version  of  it, 
as  will  suit  his  case.  In  closely  contested 
cases  of  fact,  testimony  thus  obtained 
must  always  be  unsatisfactory  and  liable 
to  suspicion,  especially  if  the  party  has 
had  time  and  opportunity  to  take  it  in 
the  regular  way.  This  provision  of  the 
act  of  Congress  should  never  be  resorted 
to,  unless  in  circumstances  of  absolute 
necessity,  or  in  the  excepted  cases  we 
have  just  mentioned."  See  Walsh  v. 
Rogers,  13  How.  S.  C.  286,  287. 

3  Ruggles  V.  Bucknor,  1  Paine,  3-58; 
The  Patapsco  Ins.  Co.  v.  Southgate,  5 
Peters,  604;  Fowler  v.  Merrill,  11  How. 
375  [Palmer  v.  Fogg,  35  Maine,  368; 
Hoyt  I'.  Hammekin,  14  How.  (U.  S.)  346; 
Fowler  v.  Merrill,  11  Id.  375;  Lyon  i-.  Ely, 
24  Conn.  507.  Where  depositions  are 
taken  before  a  mayor,  and  are  certified  by 
him,  though  without  an  ofiicial  seal,  the 
court  will  presume  that  he  was  mayor, 
unless  the  contrary  be  shown.  Price  v. 
Morris,  5  McLean,  4.  See  also  Wilkin- 
son V.  Yale,  6  McLean,  16.  Where  it  is 
made  the  duty  of  the  magistrate  taking 
a  deposition  to  certify  the  reason  for  tak- 


384 


LAW   OF  EVIDENCE. 


[PAET  ni. 


tificate  will  be  good  evidence  of  all  the  facts  therein  stated,  so  as 
to  entitle  the  deposition  to  be  read,  if  the  necessary  facts  are 
therein  sufficiently  disclosed.^  In  cases  where,  under  the  author- 
ity of  an  act  of  Congress,  the  deposition  of  a  witness  is  taken  de 
bene  esse,  the  party  producing  the  deposition  must  show  affirma- 
tively that  his  inability  to  procure  the  personal  attendance  of 
the  witness  still  continues ;  or,  in  other  words,  that  the  cause  of 
taking  the  deposition  remains  in  force.  But  this  riile  is  not 
applied  to  cases  where  the  witness  resides  more  than  a  hundred 
miles  from  the  place  of  trial,  he  being  beyond  the  reach  of  com- 
pulsory process.  If  he  resided  beyond  that  distance  when  the 
deposition  was  taken,  it  is  presumed  that  he  continues  so  to  do, 
until  the  party  opposing  its  admission  shows  that  he  has  removed 
within  the  reach  of  a  subpoena? 


ing  it,  his  certificate  of  the  cause  of  taking 
is  prima  fucie  proof  of  the  fact,  and  ren- 
ders the  deposition  admissible,  unless  it 
is  controlled  by  other  evidence.  West 
Boylston  v.  Sterling,  17  Pick.  126;  Lit- 
tlehale  v.  Dix,  11  Id.  365.  Nor  is  it 
necessary  that  it  should  appear  by  the 
deposition  or  the  certificate  in  what  man- 
ner, or  by  what  evidence,  the  magistrate 
was  satisfied  of  the  existence  of  the  cause 
of  the  taking.  It  is  enough,  if  he  certi- 
fies to  the  fact  upon  his  official  responsi- 
bility. Thus,  where  the  magistrate  duly 
certified  that  the  deponent  lived  more 
tlian  tliirty  miles  from  the  place  of  trial, 
no  evidence  being  offered  to  control  the 
certificate,  and  the  court  not  being  bound 
to  take  judicial  notice  of  the  distance  of 
one  place  from  another,  it  was  held  that 
the  deposition  was  rightly  admitted.  Lit- 
tleliale  v.  Dix,  ub.  supra.  Where  the 
magistrate  certifies  that  the  "cause  as- 
signed by  the  plaintiff,"  who  was  tlie 
party  taking  the  deposition,  for  taking 
the  same,  was  the  deponent's  being  about 
to  leave  the  Commoinvcalth,  and  not  to 
return  in  time  for  the  trial,  it  is  proper 
that  such  party  should  show  that  the 
cause  existed  at  the  time  of  the  trial. 
Kinney  i-.  Bcrran,  6  Cush.  394]. 

1  Bell  V.  Morrison,  1  Peters,  356. 

2  The  Patapsco  Ins.  Co.  i;.  Southgate, 
5  Peters,  604,  616-618  ;  Pettibone  v.  Der- 
ringer, 4  Wash.  215;  1  Stark.  Evid.  277. 
[Where  a  deposition  is  taken  under  the 
act  of  Congress,  witliout  notice,  the  ad- 
verse party,  if  dissatisfied,  should  have 
it  taken  again.  Goodhue  r.  Bartlett,  5 
McLean,  186.  Wliere  the  Federal  Circuit 
Court  adopts  the  law  and  practice  of  the 
State  in  taking  depositions,  it  will  be  pre- 
Bumed  to  have  adopted  a  modification 


thereof,  which  has  been  followed  for  a 
long  time.  But  whatever  be  the  State 
law,  the  act  of  Congress  is  to  prevail, 
which  requires  that  the  deponent  should 
live  one  himdred  miles  from  tlie  court. 
Curtis  V.  Central  Railroad,  6  McLean,  401. 
A  few  cases  are  added,  illustrating  the 
rules  of  law  and  the  practice  of  the  courts 
in  regard  to  admitting  or  rejecting  depo- 
sitions. Depositions  of  several  witnesses, 
taken  under  one  commission  on  one  set 
of  interrogatories,  a  part  of  which  only 
are  to  be  propounded  to  each  witness,  can 
be  used  in  evidence.  Fowler  v.  Merrill, 
11  How.  (U.  S.)375.  If  the  words  "before 
me,"  preceding  the  name  of  the  magis- 
trate before  whom  the  deposition  was 
taken  and  sworn,  be  omitted  in  the  cap- 
tion, the  deposition  is  not  admissible. 
Powers  V.  Sliepard,  1  Foster  (N.  H.),  00. 
Where  one  party  takes  a  deposition  on  in- 
terrogatories, or  portions  of  a  deposition, 
for  the  purpose  of  meeting  the  testimony 
of  a  witness  who  has  deposed,  or  testi- 
mony wliich  he  may  expect  the  other 
part3'  will  produce,  but  does  not  intend  to 
use  the  answers  thereto,  unless  the  other 
testimony  is  introduced,  he  must  accom- 
pany the  interrogatories  with  a  distinct 
notice  in  writing  thiit  his  purpose  is 
merely  to  meet  the  testimony  of  his  ad- 
versary's witness  or  witnesses;  and  if 
this  is  not  done,  the  answers  must  be 
read  to  the  jury  if  required  by  the  other 
party.  This  is  the  most  eligible  rule  in 
such  cases,  and  will  save  to  each  party 
all  his  just  rights,  and  prevent  all  unfair- 
ness and  surprise.  By  Metcalf,  J.,  in 
Linfield  v.  Old  Colony  R.  R.  Corp.,  10 
Cusii.  570.  See  McKelvy  i'.  De  Wolfe,  20 
Penn.  St.  374.  A  deposition  taken  under 
a  commission  duly  issued  on  "interroga- 


CHAP.  I.]  ATTENDANCE   OF  WITNESSES.  385 

§  324.  Depositions  in  perpetuam.  By  the  act  of  Congress  al- 
ready cited,!  the  power  of  the  courts  of  the  United  States,  as 
courts  of  common  law,  to  grant  a  dedimus  potestatem  to  take  de- 
positions, whenever  it  may  be  necessary,  in  order  to  prevent  a 
failure  or  delay  of  justice,  is  expressly  recognized  ;  and  the  circuit 
courts,  when  sitting  as  courts  of  equity,  are  empowered  to  direct 
depositions  to  be  taken  in  perpetuam  rei  memoriam,  according  to 
the  usages  in  chancery,  where  the  matters  to  which  they  relate 
are  cognizable  in  those  courts.  A  later  statute  ^  has  facilitated 
the  taking  .of  depositions  in  the  former  of  these  cases,  by  provid- 
ing that  when  a  commission  shall  be  issued  by  a  court  of  thi) 
United  States  for  taking  the  testimony  of  a  witness,  at  any  place 
within  the  United  States,  or  the  territories  thereof,  the  clerk  of 
any  court  of  the  United  States,  for  the  district  or  territory  where 
the  place  may  be,  may  issue  a  subpoena  for  the  attendance  of  the 
witness  before  the  commissioner,  provided  the  place  be  in  the 
county  where  the  witness  resides,  and  not  more  than  forty  miles 
from  his  dwelling.  And  if  the  witness,  being  duly  summoned, 
shall  neglect  or  refuse  to  appear,  or  shall  refuse  to  testify,  any 
judge  of  the  same   court,  upon  proof  of  such   contempt,   may 

tories  to  be  put  to  M.  H.  B.,  of  Janesville,  object,  at  the  trial,  to  the  interrogatories 

Wisconsin,  laborer,"  but  which  purports  and  answers,  as  proving  facts  by  incora- 

by  its  caption  to  be  the  deposition    of  petent  evidence.     Atlantic  Mutual  Ins. 

M.    H.   B.,  of   Sandusky,   Ohio,  and  in  Co.  y.  Fitzpatrick,  2  Gray,  279;  Lord  v. 

which  the  deponent  states  his  occupation  Moore,  37   Maine,  208.     And  to  exclude 

to  be  that  of  peddler,  is   admissible  in  the  deposition  on  tlie  ground  of  the  in- 

evidence,  notwithstanding  tlie  variance,  terest  of  the  deponent,  it  is  not  necessary 

if  it  appears  tliat  the   deponent   is   the  that  the  objection  should  be  taken  before 

same  person  to  whom  the  interrogatories  the  magistrate.     Whitney  i'.  Heywood,  6 

are  addressed.     Smith  f.  Castles,  1  Gray,  Cush.  82;   infra,  §421,  n.     Where   the 

108.     The  questions  appended  to  a  com-  witness  was  interested  at  the   time   his 

mission   sent   to  Bremen  were   in  Eng-  deposition  was  taken,  and  a  release   to 

lish ;    the    commissioners    returned    the  him  was  afterwards  executed,  the  depo- 

answers  in  German,  anne.xed  to  a  Ger-  sition  was  not  admitted.      Reed  v.  Rice, 

man  translation  of   the   questions  ;    the  25  Vt.  171 ;  Ellis  v.  Smith,  10  Geo.  253. 

commi.«sion  was  objected  to  on  tlie  ground  If  the  deponent  is  disqualified  by  reason 

that  the  return  should  have  been  in  Eng-  of  interest  at  the  time  of  giving  his  depo- 

lish,  or  accompanied  by  an  English  trans-  sition,  and  at  the  time  of  the  trial^  the 

lation  ;  but  the  objection  was  overruled ;  disqualification    has   been    removed   by 

and  a  sworn  interpreter  was  permitted  to  statute,  the   deposition  can   be   used   in 

translate   the   answers    viva   vore  to  the  evidence.      Haynes  v.  Rowe,  40  Maine, 

jury.     Kuhtman  v.  Brown,  4  Rich.  479.  181.      Where,    after    the    deposition    is 

Where  a  deposition  is  taken  by  a  magis-  taken,   he    becomes    interested    in    the 

trate  in  another  State,  under  a  written  event  of  the  suit,  by  no  act  of  his  own, 

agreement  that  it  may  be  so  taken  upon  or  of  the  party  who  offei-s  liis  testimony, 

the   interrogatories   and   cross-interroga-  the  deposition  is_  admissible.     Sabine  v. 

tories  annexed  to  the  agreement,  such  Strong,  6  ^let.  670.] 
agreement  operates  only  as  a  substitute  ^  Stat.  1789,  c.  20,  §  30. 

for  a  commission  to  the  magistrate  named  2  gtat.  1827,  c.  4.      See  the  practice 

therein,  and  a  waiver  of  objections  to  the  and  course  of  proceeding  in  these  cases, 

interrogatories  in  point  of  form,  and  does  in  2  Raine  &  Duer's  Rr.  pp.  102-110;  2 

not  deprive  either  party  of  the  right  to  Tidd's  Rr.  810-812. 
VOL.  I.                                                     25 


386  LAW   OF  EVTDEKCB.  [PAUT  IH. 

enforce  obedience,  or  punish  the  disobedience,  in  the  same  manner 
as  the  courts  of  the  United  States  may  do,  in  case  of  disobedience 
to  their  own  process  of  subpoena  ad  testificandum.  Some  of  the 
States  have  made  provision  by  law  for  the  taking  of  depositions, 
to  be  used  in  suits  pending  in  other  States,  by  bringing  the  de- 
ponent witliin  the  operation  of  their  own  statutes  against  perjury  ; 
and  national  comity  plainly  requires  the  enactment  of  similar  pro- 
"V  isions  in  all  civilized  countries.  But  as  yet  they  are  far  from  being 
universal ;  and  whether,  in  the  absence  of  such  provision,  false 
swearing  in  such  case  is  punishable  as  perjury,  has  been  gravely 
doubted.i  Where  the  production  of  papers  is  required,  in  the 
case  of  examinations  under  commissions  issued  from  courts  of  the 
United  States,  any  judge  of  a  court  of  the  United  States  may,  by 
the  same  statute,  order  the  clerk  to  issue  a  subpoena  duces  tecum 
requiring  the  witness  to  produce  such  papers  to  the  commissioner, 
upon  the  affidavit  of  the  applicant  to  his  belief  that  the  witness 
possesses  the  papers,  and  that  they  are  material  to  his  case  ;  and 
may  enforce  the  obedience  and  punish  the  disobedience  of  the 
witness,  in  the  manner  above  stated. 

§  325.  Same  subject.  But  independently  of  statutory  provi- 
sions, chancery  has  power  to  sustain  bills,  filed  for  the  purpose  of 
preserving  the  evidence  of  witnesses  in  perpetuam  rei  memoriam^ 
touching  any  matter  which  cannot  be  immediately  investigated 
in  a  court  of  law,  or  where  the  evidence  of  a  material  witness  is 
likely  to  be  lost,  by  his  death,  or  departure  from  the  jurisdiction, 
or  by  any  other  cause,  before  the  facts  can  be  judicially  investi- 
gated. The  defendant,  in  such  cases,  is  compelled  to  appear  and 
answer,  and  the  cause  is  brought  to  issue,  and  a  commission  for 
the  examination  of  the  witnesses  is  made  out,  executed,  and  re- 
turned in  the  same  manner  as  in  other  cases  ;  but  no  relief  being 
prayed,  the  suit  is  never  brought  to  a  hearing  ;  nor  will  the  court 
ordinarily  permit  the  publication  of  the  depositions,  except  in  sup- 
port of  a  suit  or  action  ;  nor  then,  unless  the  witnesses  are  dead,  or 
otherwise  incapable  of  attending  to  be  examined.^ 

1  Cailland  v.  Vaughan,  1  B.  &  B.  210.         «  Smith's  Chancery  Prac.  284-286. 


CHAP,  n.]  COMPETENCY   OF   WITNESSES.  387 


CHAPTER  II. 

OP  THE  COIklPETENCY  OF  WITNESSES. 

§  326.  Competency  of  evidence.  Although,  in  the  ordinary- 
affairs  of  life,  temptations  to  practise  deceit  and  falsehood  may 
be  comparatively  few,  and  therefore  men  may  ordinarily  be  dis- 
posed to  believe  the  statements  of  each  other ;  yet,  in  judicial  in- 
vestigations, the  motives  to  pervert  the  truth  and  to  perpetrate 
falsehood  and  fraud  are  so  greatly  multiplied,  that  if  statements 
were  received  with  the  same  undiscriminating  freedom  as  in 
private  life,  the  ends  of  justice  could  with  far  less  certainty  be 
attained.  In  private  life,  too,  men  can  inquire  and  determine  for 
themselves  whom  they  will  deal  with,  and  in  whom  they  will 
confide ;  but  the  situation  of  judges  and  jurors  renders  it  difficult, 
if  not  impossible,  in  the  narrow  compass  of  a  trial,  to  investigate 
the  character  of  witnesses  ;  and  from  the  very  nature  of  judicial 
proceedings,  and  the  necessity  of  preventing  the  multiplication 
of  issues  to  be  tried,  it  often  may  happen  that  the  testimony  of  a 
witness,  unworthy  of  credit,  may  receive  as  much  consideration 
as  that  of  one  worthy  of  the  fullest  confidence.  If  no  means 
were  employed  totally  to  exclude  any  contaminating  influences 
from  the  fountains  of  justice,  this  evil  would  constantly  occur. 
But  the  danger  has  always  been  felt,  and  always  guarded  against, 
in  all  civilized  countries.  And  while  all  evidence  is  open  to  the 
objection  of  the  adverse  party,  before  it  is  admitted,  it  has  been 
found  necessary  to  the  ends  of  justice,  that  certain  kinds  of  evi- 
dence should  be  uniformly  excluded.^ 

§  327.  Same  subject.  In  determining  what  evidence  shall  be 
admitted  and  weighed  by  the  jury,  and  what  shall  not  be  received 
at  all,  or,  in  other  words,  in  distinguishing  between  competent 
and  incompetent  witnesses,  a  principle  seems  to  have  been  applied 
similar  to  that  which  distinguishes  between  conclusive  and  dis- 
putable presumptions  of  law ;  ^  namely,  the  experienced  connection 
between  the  situation  of  the  witness,  and  the  truth  or  falsity  of 

1  4  Inst.  279.  «  Supra,  §§  14, 15. 


388  LAW   OF  EVIDENCE.  [PAET  HI. 

■liis  testimony.  Thus,  the  law  excludes  as  incompetent,  those 
persons  whose  evidence,  in  general,  is  found  more  likely  than 
otherwise  to  mislead  juries;  receiving  and  weighing  the  testi- 
mony of  others,  and  giving  to  it  that  degree  of  credit  which  it  is 
found  on  examination  to  deserve.  It  is  obviously  impossible  that 
any  test  of  credibility  can  be  infallible.  All  that  can  be  done  is 
to  approximate  to  such  a  degree  of  certainty  as  will  ordinarily 
meet  the  justice  of  the  case.  The  question  is  not,  whether  any 
rule  of  exclusion  may  not  sometimes  shut  out  credible  testimony  ; 
but  whether  it  is  expedient  that  there  should  be  any  rule  of  ex- 
clusion at  all.  If  the  purposes  of  justice  require  that  the  decision 
of  causes  should  not  be  embarrassed  by  statements  generally 
found  to  be  deceptive,  or  totally  false,  there  must  be  some  rule 
designating  the  class  of  evidence  to  be  excluded ;  and  in  this 
case,  as  in  determining  the  ages  of  discretion,  and  of  majority, 
and  in  deciding  as  to  the  liability  of  the  wife,  for  crimes  com- 
mitted in  company  with  the  husband,  and  in  numerous  other 
instances,  the  common  law  has  merely  followed  the  common  ex- 
perience of  mankind.  It  rejects  the  testimony  (1)  of  parties ; 
(2)  of  persons  deficient  in  understanding  ;  (3)  of  persons  insen- 
sible to  the  obligations  of  an  oath;  and  (4)  of  persons  whose 
pecuniary  interest  is  directly  involved  in  the  matter  in  issue ; 
not  because  they  may  not  sometimes  state  the  truth,  but  because 
it  would  ordinarily  be  unsafe  to  rely  on  their  testimony.^  Other 
causes  concur,  in  some  of  these  cases,  to  render  the  persons  in- 
competent, which  will  be  mentioned  in  their  proper  places.  We 
shall  now  proceed  to  consider,  in  their  order,  each  of  these  classes 
of  persons,  held  incompetent  to  testify ;  adding  some  observations 

1  "If  it  he  objected,  that  interest  in  witnesses  so  circumstanced  are  free  from 

the  matter  in  dispute  niiglit,  from  the  temptation,  and  the  cause  not  exposed 

bias  it  creates,  be  an  exception  to  the  to  the  liazard  of  the  very  doubtful  esti- 

credit,  but  that  it  oufjht  not  to  be  abso-  mate,   what  quantity  of  interest  in  the 

lately  so  to  the  (;ompotency,  any  more  question,  in  proportion  to  the  character 

than  the  friendship  or  enmity  of  a  party,  of  the  witness,  in  any  instance,  leaves  his 

whose  evidence  is  ofTered,  towards  either  testimony  entitled  to  belief.     Some,  :n- 

of  the  parties  in  the  cause,  or  many  other  deed,  are  incapable  of  being  biassed  even 

considerations  hereafter  to  be  intimated  ;  latently  by  the  greatest  interest;  manj 

the  general  answer  may  be  this,  that  in  would  l)etray  the  most  solenin  obligation 

point  of  authority  no  distinction  is  more  and  public  confidence  for  an  interest  very 

absolutely  settled ;  and  in  point  of  theory,  inconsiderable.     An  universal  exclusion, 

the  existence  of  a  direct  interest  is  capa-  where  no  line  short  of  this  could  have 

hie  of   being   precisely  proved  ;  but  its  been  drawn,  preserves  infirmity  from  a 

influence   on   the   mind   is   of    a   nature  snare,  and  integrity  from  susjiicitn ;  and 

not    to    discover    itself    to     the    jury ;  keeps  the  current  of  evidence,  thus  far 

whence  it  hath  been  held  expedient  to  at  least,  clear  and  uninfected."     1  Gilb. 

adopt  a   general  exception,    by    which  Evid.  by  LofEt,  pp.  223,  224. 


CHAP,  n.]  C0MPETE2sCY   OF   "WITNESSES.  389 

on  certain  descriptions  of  persons,  held  incompetent  in  particular 
cases. 

§  328.  Must  have  the  sanction  of  an  oath.  But  here  it  is  proper 
to  observe,  that  one  of  the  main  provisions  of  the  law,  for  secur- 
ing the  purity  and  truth  of  oral  evidence,  is,  that  it  be  delivered 
under  the  sanction  of  an  oath.  Men  in  general  are  sensible  of 
the  motives  and  restraints  of  religion,  and  acknoyvledge  their 
accountability  to  that  Being,  from  whom  no  secrets  are  hid.  In 
a  Christian  countr}^,  it  is  presumed  that  all  the  members  of  the 
c<  immunity  entertain  the  common  faith,  and  are  sensible  to  its 
influences ;  and  the  law  founds  itself  on  this  presumption,  while, 
in  seeking  for  the  best  attainable  evidence  of  every  fact,  in  con- 
troversy, it  lays  hold  on  the  conscience  of  the  witness  by  this  act 
of  religion ;  namely,  a  public  and  solemn  appeal  to  the  Supreme 
Being  for  the  truth  of  what  he  may  utter.  "  The  administration 
of  an  oath  supposes  that  a  moral  and  religious  accountability  is 
felt  to  a  Supreme  Being,  and  this  is  the  sanction  which  the  law 
requires  upon  the  conscience,  before  it  admits  him  to  testify."  ^ 
An  oath  is  ordinarily  defined  to  be  a  solemn  invocation  of  the 
vengeance  of  the  Deity  upon  the  witness,  if  he  do  not  declare  the 
whole  truth  as  far  as  he  knows  it ;  ^  or,  a  religious  asseveration  by 
which  a  person  renounces  the  mercy  and  imprecates  the  ven- 
geance of  Heaven,  if  he  do  not  speak  the  truth."  ^  But  the  cor- 
rectness of  this  view  of  the  nature  of  an  oath  has  been  justly 
questioned  by  a  late  writer,*  on  the  ground  that  the  imprecatory 
clause  is  not  essential  to  the  true  idea  of  an  oath,  nor  to  the 
attainment  of  the  object  of  the  law  in  requiring  this  solemnity. 
The  design  of  the  oath  is  not  to  call  the  attention  of  God  to  man ; 

*  Wakefield  v.  Ross,  5  Mason,  18,  per  under  the  Christian  emperors,  oaths  were 

Story,  J.     See  also  Menochius,  De  Prae-  taken  in  the  simple  form  of  religious  as- 

sumpt  lib.  1,  Quajst.  1,  n.  32,  33  ;  Farinac.  severation,  "  invocato  Dei  Omnipotentis 

Opera,  torn.  ii.  App.  p.  1G2,  n.  32,  p.  281,  nomine,"  Cod.  lib.  2,  tit.  4.  1.  41  ;  "  sac- 

n.  33  ;  Bynkershoek,  Observ.  Juris.  Rom.  rosanctis  evangeliis  tactis,"  Cod.  lib.  3, 

lib.  6,  c.'2.  tit.  1,  1.  14.     Constantine  added  in  a  re- 

2  1  Stark.  Evid.  22.     The  force  and  script,    "  Jurisjurandi    rcligione    testes, 

utility  of  this  sanction  were  familiar  to  prius  quam  perhibeant  testimonium,  jam- 

the  Romans  from  the  earliest  times.    The  dudum  arctari  praecipimus."     Cod.  lib.  4, 

solemn  oath  was  anciently  taken  by  this  tit.  20,1.  9.    See  also  Omichundv.  Barker, 

formula,  the  witness  holding  a  flint  stone  1  Atk.  21,  48,  per  Ld.  Hardwicke  ;  s.  c. 

in  his  right  hand:  "  Si  sciens  fallo,  turn  Willes,538;  1  Phil.  Evid.  p.  8;  Atcheson  w. 

me  Diespiter,  salva  urbe  arceque,  bonis  Everitt,  Cowp.  389.    Thesubject  of  oaths 

ejiciat,  ut  ego  hanc  lapidem."     Adam's  is  very  fully  and  ably  treated  by  ^Ir. 

Ant.  247  ;  Cic.  Fam.  Ep.  vii.  1, 12  ;  12  Law  Tyler.'in  his  book  on  Oaths,  their  Nature, 

Mag.  (Lond.)272.  Tlie  early  Christians  re-  Origin,  and  History.     Lond.  1834. 

fused  to  utter  any  imprecation  sviiatever,  ^  White's  case,  2  Leach,  Cr.  Cas.  482- 

Tyler  on  Oaths,  c.  6 ;  and  accordingly,  *  Tyler  on  Oaths,  pp.  12,  13. 


890  LAW   OF  EVIDENCE.  [PAET  m. 

but  the  attention  of  man  to  God  ;  —  not  to  call  on  Him  to  punish 
the  wrong-doer ;  but  on  man  to  remember  that  He  will.  That 
this  is  all  which  the  law  requires  is  evident  from  the  statutes  in 
regard  to  Quakers,  Moravians,  and  other  classes  of  persons,  con- 
scientiously scrupulous  of  testifying  under  any  other  sanction, 
and  of  whom,  therefore,  no  other  declaration  is  required.  Ac- 
cordingly, an  oath  has  been  well  defined,  by  the  same  writer,  to 
be  "  an  outward  pledge,  given  by  the  juror  "  (or  person  taking 
it),  "that  his  attestation  or  promise  is  made  under  an  immediate 
sense  of  his  responsibility  to  God."  ^  A  security  to  this  extent, 
for  the  truth  of  testimony,  is  all  that  the  law  seems  to  have 
deemed  necessary  ;  and  with  less  security  than  this,  it  is  believed 
that  the  purposes  of  justice  cannot  be  accomplished. 

§  329.  Parties  to  the  record.  And,  first,  in  regard  to  parties,  the 
general  rule  of  the  common  law  is,  that  a  jparty  to  the  record,  in  a 
civil  suit,  cannot  he  a  witness  either  for  himself,  or  for  a  co-suitor 
in  the  cause.^  The  rule  of  the  Roman  law  was  the  same.  "  Om- 
nibus in  re  propria  dicendi  testimonii  facultatem  jura  submove- 
runt."  ^  This  rule  of  the  common  law  is  founded,  not  solely  in 
the  consideration  of  interest,  but  partly  also  in  the  general  ex- 
pediency of  avoiding  the  multiplication  of  temptations  to  perjury. 
In  some  cases  at  law,  and  generally  by  the  course  of  proceedings 
in  equity,  one  party  may  appeal  to  the  conscience  of  the  other, 
by  calling  him  to  answer  interrogatories  upon  oath.  But  this 
act  of  the  adversary  may  be  regarded  as  an  emphatic  admission, 
that,  in  that  instance,  the  party  is  worthy  of  credit,  and  that  his 
known  integrity  is  a  sufiicient  guaranty  against  the  danger  of 
falsehood.'*     But  where  the  party  would  volunteer  his  own  oath, 

1  Tyler  on  Oaths,  p.  15.     See  also  the  make  affidavit  that  material  facts  in  his 

report  of  tlie  Lords'  Committee,  Id.  In-  case  are  known  to  the  adverse  party,  and 

trod.  p.  xiv.;  3  Inst.  165;  Fleta,  lib.  5,  c.  that  he  has  no  otlier  proof  of  them,  in 

22  ;  Fortescue,  DeLaud.  Leg.  Angl.  c.  26,  which  case  he  may  be  examined  as  to 

p.  58.  those    facts.     Rev.    Stat.    1840,   c.    102, 

'■^  3  Bl.  Comm.  371  ;  1  Gilb.  Evid.  by  §  100.     Li  Nno  York,  the  adverse  party 

LoflTt,  p.  221 ;  Frearv.  Evertson,  20  Johns,  maybe  called  as  a  witness  ;  and,  if  so, 

142.  he  may  testify  in  his  own  behalf,  to  the 

^  Cod.  lib.  4,   tit.   20,   1.    10.     Nullus  same  matters  to  which  he  is  examined  in 

idoneus  testis  in  re  sua  intelligitur.    Dig.  chief;  and  if  lie  tcj^tifies  to  new  matter, 

lib.  22,  tit.  5,  1.  10.  the  i)arty  callini^  him  may  also  testify  to 

*  In  several  of  the  United  States,  any  sucii  new  matters.     Uev.   Stat.   vol.  iii. 

party,  in  a  suit  at  law,  may  compel  the  p.  Ttiii  (8d  ed.).     The  law  is  the  same  in 

adverse  party  to  appear  and  testify  as  a  Wisconsin.     Kev.  Stat.  184'.),  c.  08,  §§  57, 

witness.    In  Conm client,  this  may  be  done  CO    [and   in   New  ./ersei/,  Nixon's  Digest 

in  all  cases.     I{ev.  Stat.  184'.),  tit.  1,  §  142.  (1855),  p.  187].     In  Missouri,  parties  may 

So  in  Ohio.     Stat.  March  23,  1850,  §§  1,  summon  each  other  as  witnesses,  in  jus- 

2.     In  Michiijan,  the  applicant  must  first  tices'  courts ;  and,  if  the  party  so  sum- 


CHAP.  U.] 


COMPETENCY  OF  WITNESSES. 


391 


or  a  co-suitor,  identified  in  interest  with  liim,  would  offer  it,  tliis 
reason  for  the  admission  of  the  evidence  totally  fails ;  ^  "  and  it  is 


moned  refuses  to  attend  or  testify,  the 
other  partv  may  give  liis  own  oath  in 
litem.  Kev.  Stat.  1845,  c.  93,  §§  24,  25. 
[In  Massachusetts  (Acts  of  1857,  c.  305), 
pi.rties  in  all  civil  actions  and  proceed- 
ings, including  probate  and  insolvency 
proceedings,  suits  in  equity,  and  all  di- 
vorce suits,  except  those  in  wliich  a  di- 
vorce is  souglit  for  the  alleged  criminal 
conduct  of  either  party,  may  be  admitted 
to  testify  in  their  own  favor,  and  may  be 
called  as  witnesses  by  the  opposite  party. 
In  all  actions  in  vvliich  the  wife  is  a  party, 
or  one  of  the  parties  to  the  action,  she 
and  her  husband  are  competent  witnesses 
for  or  against  each  other,  but  they  cannot 
testify  as  to  private  conversations  with 
each  other.  No  person  so  testifying  is 
compelled  to  criminate  himself;  and  if 
one  of  the  original  parties  to  the  contract 
or  cause  of  action  then  in  issue  and  on 
trial,  be  dead,  or  is  shown  to  the  court  to 
be  insane ;  or  when  an  executor  or  admin- 
istrator is  a  party  to  the  suit  or  proceed- 
ing, the  other  party  cannot  testify,  except 
in  the  last-named  case,  as  to  sucli  acts 
and  contracts  as  have  been  done  or  made 
since  the  probate  of  tiie  will  or  the  ap- 
pointment of  the  administrator.  The 
depositions  of  sucii  parties  may  be  taken, 
as  of  other  witnesses,  and  the  expense 
thereof  taxed  in  the  bill  of  costs.  The 
laws  relating  to  attesting  witnesses  to 
wills  are  not  affected  by  the  act.  Parties 
are  also,  with  certain  exceptions,  compe- 
tent witnesses  for  either  party;  in  Maine, 
Rev.  Stat.  (1857)  c.  82,  |§  78-83  ;  in  New 
Hampshire,  Acts  of  1857,  c.  1952,  pam- 
phlet edition  of  Laws,  p.  1868  ;  in  Vei-mont, 
Acts  of  18-52,  No.  13  (Nov.  23,  1852)  ; 
Acts  of  1853,  No.  13  (Dec.  6,  18.53);  in 
R/wde  Island,  Rev.  Stat.  (1857)  c.  187, 
§  34 ;  in  Connecticut,  Pub.  Stat.  (Compila- 
tion of  1854)  p.  95,  §  141 ;  in  Ohio,  Rev. 
Stat.  (Curwen's  ed.)  vol.  iii.  p.  1986,  tit. 
X.  c.  1,  §§  310-313. 


1  "  For  where  a  man,  who  is  inter- 
est id  in  the  matter  in  question,  would 
also  prove  it,  it  rather  is  a  ground  for 
distrust,  than  any  just  cause  of  belief ; 
for  men  are  generally  so  short-sighted, 
as  to  look  to  their  own  private  benefit, 
which  is  near  them,  rather  than  to  the 
good  of  the  world,  '  wliich,  though  on 
the  sum  of  things  really  best  for  the  in- 
dividual,' is  more  remote ;  therefore, 
from  the  nature  of  human  passions  and 
actions,  there  is  iriore  reason  to  distrust 


The  Connecticut  statute  provides 
that  no  person  shall  be  disqualified  as  a 
witness  by  reason  of  interest  in  the  event 
of  the  suit,  whether  as  a  party  or  other- 
wise. Under  tiiis  statute  the  wife  is  held 
to  be  a  competent  witness  for  the  hus- 
band. Merriam  v.  Hartford  &  N.  H. 
R.  R.  Co.,  20  Conn.  354,  363.  For  a  sim- 
ilar decision  in  Vermont,  see  Rutland 
&  B.  R.  R.  Co.  V.  Simson's  Adm'r,  19 
Law  Rep.  629.  See  to  this  point  under 
tiie  Massachusetts  statute  of  1856,  which 
provided  tliat  parties  in  all  civil  actions 
may  testify,  &c.,  without  the  additional 
clause  as  to  husband  and  wife  that  is  in 
the  Act  of  1857  (see  supra).  Barber  v. 
Goddard,  20  Law  Rep.  408,  and  Snell  v. 
Westport,  Id.  414,  which  decide  that  the 
wife  is  a  competent  witness  if  a  party  to 
the  suit,  but  not  otherwise.  By  the  Re- 
vised Statutes  of  the  United  States, 
§  858,  it  is  enacted  that,  "  in  the  courts  of 
the  United  States,  no  witness  siiall  be 
excluded  in  any  action  on  account  of 
color,  or  in  any  civil  action  because  he 
is  a  party  thereto,  provided,  that,  in 
actions  by  or  against  executors,  adminis- 
trators, or  guardians,  in  which  judg- 
ment may  be  rendered  for  or  against 
them,  neither  party  shall  be  allowed 
to  testify  against  the  other,  as  to  any 
transaction  with  or  statement  by  the  tes- 
tator, intestate,  or  ward,  unless  called  to 
testify  thereto  by  the  opposite  party,  or 
required  to  testify  thereto  by  the  court. 
In  all  other  respects  the  laws  of  the  State 
in  which  the  court  is  held  shall  be  the 
rules  of  decision  as  to  the  competency  of 
witnesses  in  the  courts  of  tlie  United 
States  in  trials  at  common  law,  and  in 
equity  and  admiralty."  The  object  of 
this  statute  was  to  put  llie  parties  (sav- 
ing the  exceptions)  on  a  footing  of  equal- 
ity with  otlier  witnesses  ;  that  is,  to  make 
all  admissible  to  testify  for  themselves, 
and  all  compellable  to  testify  for  others. 


such  a  biassed  testimony  than  to  believe 
it.  It  is  also  easy  for  persons,  who  are 
prejudiced  and  prepossessed,  to  put  false 
and  unequal  glosses  upon  what  they  give 
in  evidence ;  and  therefore  the  law  re- 
moves them  from  testimony,  to  prevent 
their  sliding  into  perjury  ;  and  it  can  be 
no  injury  to  truth  to  remove  tliose  from 
the  jury,  whose  testimony  may  hurt 
themselves,  and  can  never  induce  any 
rational  belief."  1  Gilb.  Evid.  by  Lofft, 
p.  223. 


392  LAW   OF  EVIDEKCE.  [PART  HI. 

not  to  be  presumed  that  a  man,  who  complains  without  cause,  or 
defends  without  justice,  should  have  honesty  enough  to  confess 
it."  1 

§  330.  Same  subject.  The  rule  of  the  common  law  goes  still 
furl  her  in  regard  to  parties  to  the  record  in  7iot  compelling  them, 
in  1  rials  by  jury,  to  give  evidence  for  the  opposite  party,  against 
themselves,  either  in  civil  or  in  criminal  cases.  Whatever  may 
be  said  by  theorists,  as  to  the  policy  of  tlie  maxim.  Nemo  tenetnr 
seipsum  prodere,  no  inconvenience  has  been  felt  in  its  practical 
application.  On  the  contrary,  after  centuries  of  experience,  it  is 
still  applauded  by  judges,  as  "  a  rule  founded  in  good  sense  and 
sound  policy  ;  "  ^  and  it  certainly  preserves  the  party  from  temp- 
tation to  perjury.  This  rule  extends  to  all  the  actual  and  real 
parties  to  the  suit,  whether  they  are  named  on  the  record  as  such 
or  not.'^ 

§  881.  Corporators.  Whether  corporators  are  parties  within 
the  meaning  of  tliis  rule  is  a  point  not  perfectly  clear.  Corpora- 
tions, it  is  to  be  observed,  are  classed  into  public  or  municipal, 
and  private,  corporations.  The  former  are  composed  of  all  the 
inhabitants  of  any  of  the  local  or  territorial  portions  into  which 
the  country  is  divided  in  its  political  organization.  Such  are 
counties,  towns,  boroughs,  local  parishes,  and  the  like.  In  these 
cases,  the  attribute  of  individuality  is  conferred  on  the  entire 
mass  of  inhabitants,  and  again  is  modified,  or  taken  away,  at  the 
mere  will  of  the  legislature,  according  to  its  own  views  of  public 
convenience,  and  without  any  necessity  for  the  consent  of  the  in- 
habitants, though  not  ordinarily  against  it.  They  are  termed 
quasi  corporations;  and  are  dependent  on  the  public  will,  the 
inhabitants  not,  in  general,  deriving  any  private  and  personal 
rights  under  the  act  of  incorporation ;  its  office  and  object  being 
not  to  grant  private  rights,  but  to  regulate  the  manner  of  per- 
forming public  duties.'*     These  corporations  sue  and  are  sued  by 

Texas  v.   Chiles,  22  Wall.  (U.  S)  157.  »  Rex  y.  Woburn,  10  East,  395;  Mau- 

AihI  he  beconu's  a  witness  for  all  j)ur-  ran  v.  Lamb,  7  Cowen,  174;  A])pleton  v. 

poses  not  exclii<lecl  by  the  statute,  and  Boyd,  7  Mass.   131;  Fenn  v.  Granger,  3 

may  testify  to  liis  own  mental  processes,  Campb.  177. 

knowledjre,  anil  intent,  as  well  as  to  other  ■•  An^^ell    &   Ames   on    Corp.   16,  17; 

facts.     Wheeldon  ;'.  Wilson,  44  Maine,  1.  Rumford  r.  Wood,   i:}  Mass.   192.     The 

See  also  yio.s^  §§  3o4,  n.,  451,  n.j  observations  in  the  te.xt  are   ai)plied  to 

■>  1  Gill).  Evid.  by  LolTt,  p.  243.  American  corporations  of  a  political  cliar- 

■^  Worrall  i'.  .Jones,  7  Uing.  395,  per  acter.     Whctlier  a  miinicij)al  corporation 

Tindal,  C  J. ;  Kcx  v.  Woburn,  10  East,  can  in  every  case  be  ilissolved  by  an  act 

403,  per  Lord  Ellcnborongh.  C.  J. ;  Com-  of  the  legislature,  and  to  what  extent  such 

nionwealth  v.  ilarsh,  10  Tick.  57.  act  of  dissolution  may  constitutionaily 


CHAP,  n.] 


COIMPETENCT  OF  TTITKESSES. 


393 


the  name  of  "the  Inhabitants  of"  such  a  phace  ;  each  inhabitant 
is  directly  liable  in  liis  person  to  arrest,  and  in  his  goods  to  seizure 
and  sale,  on  the  execution,  which  may  issue  against  the  collective 
body,  by  that  name  ;  and  of  course  each  one  is  a  party  to  the  suit ; 
and  his  admissions,  it  seems,  are  receivable  in  evidence,  though 
their  value,  as  we  have  seen,  may  be  exceedingly  light.^  Being 
pai'ties,  it  would  seem  naturally  to  follow,  that  these  inhabitants 
were  neither  admissible  as  witnesses  for  themselves,  nor  compel- 
lable to  testify  against  themselves ;  but  considering  the  public 
nature  of  the  suits,  in  which  they  are  parties,  and  of  the  interest 
generally  involved  in  them,  the  minuteness  of  the  private  and 
personal  interest  concerned,  its  contingent  character,  and  the 
almost  certain  failure  of  justice,  if  the  rule  were  carried  out  to 
such  extent  in  its  application,  these  inhabitants  are  admitted  as 
competent  witnesses  in  all  cases,  in  which  the  rights  and  liabilities 
of  the  corporation  only  are  in  controversy.  But  where  the  in- 
habitants are  individually  and  personally  interested,  it  is  other- 
wise.2    Whether  this  exception  to  the  general  rule  was  solely 


operate,  are  questions  which  it  is  not 
necessary  liere  to  discuss.  See  Willcock 
on  Municipal  Corporations,  pt.  1,  §  852  ; 
Terrett  i'.  Taylor,  9  Cranch,  43,  51; 
Dartmouth  College  v.  Woodward,  4 
Wheat.  518,  629,  663  [Warren  v.  Cliarles- 
town,  2  Gray,  84,  100]. 

1  Supra,  §  175,  and  n. 

'•i  Swift's  Evid.  57  ;  Rex  v.  Mayor  of 
London,  2  Lev.  231.  Thus  an  inliabitant 
is  not  competent  to  prove  a  way  by  pre- 
scription for  all  the  inhabitants,  Odiorne 
V.  Wade,  8  Pick.  518 ;  nor  a  right  in  all 
the  inhabitants  to  take  shell-fish,  Lufkin 
V.  Haskell,  3  Pick.  356 ;  for  in  sucii  cases, 
by  the  conunon  law,  tlie  record  would  be 
evidence  of  the  custom,  in  favor  of  the 
witness.  [But  see  Look  v.  Bradley,  13 
Met.  369, 372.]  This  ground  of  objection, 
however,  is  now  removed  in  England,  by 
Stat.  3  &  4  W.  IV.  c.  42.  The  same  prin- 
ciple is  apj)lied  to  any  private,  joint,  or 
common  interest.  Parker  v.  Mitchell,  11 
Ad.  &  El.  788.  See  also  Prewitt  v.  Til- 
ley,  1  C.  &  P.  140;  Ang.  &  Ames  on 
Corp.  390-394  ;  Connecticut  v.  Bradish,  14 
Mass.  296 ;  Gould  v.  James,  6  Cowen, 
369;  Jacobson  v.  Fountain,  2  Johns.  170; 
Weller  v.  The  Governors  of  the  Found- 
ling Hospital,  Peake's  Cas.  153 ;  infra, 
§  405.  In  tiie  English  courts,  a  distinc- 
tion is  taken  between  rated  and  raiahle  in- 
liabitants,  the  former  being  held  inadmis- 
sible as  witnesses,  and  the  latter  being 


held  competent ;  and  this  distinction  has 
been  recognized  in  some  of  our  own 
courts  ;  though,  upon  the  grounds  stated 
in  the  text,  it  does  not  seem  applicable  to 
our  institutions,  and  is  now  generally  dis- 
regarded. See  Commonwealth  v.  Baird, 
4  S.  &  R.  141 ;  Falls  v.  Belknap,  1  Johns. 
486,  491 ;  Corwein  v.  Hames,  11  Johns. 
76 ;  Bloodgood  v.  Jamaica,  12  Johns.  285  ; 
supra,  §  175,  n.,  and  the  cases  above  cited. 
But  in  EiKjland,  rated  inhalntants  are 
now  by  statutes  made  competent  wit- 
nesses on  indictments  for  non-repair  of 
bridges  ;  in  actions  against  the  hundred, 
under  the  statute  of  Winton  ;  in  actions 
for  riotous  assemblies ;  in  actions  against 
church-wardens  for  misapplication  of 
funds  ;  in  summary  convictions  under  7 
and  8  Geo.  IV.  c.  29,  30 ;  on  the  trial  of 
indictments  under  tlie  general  highway 
act  and  the  general  turnj)ike  act;  and 
in  matters  relating  to  rates  and  cesses. 
Phil.  &  Am.  on  Evid.  133-138,  395;  1 
Phil.  Evid.  138-144.  In  the  province  of 
New  Brunswick,  rated  inhabitants  are  now 
made  competent  witnesses  in  all  cases 
where  the  town  or  parish  may  in  any 
manner  be  affected,  or  where  it  may  be 
interested  in  a  pecuniary  penalty ,  or  where 
its  officers,  acting  in  its  belialf,  are  par- 
ties. Stat.  9  Vict.  c.  4,  March  7,  1846. 
In  several  of  the  United  States,  also, 
the  inhabitants  of  counties  and  other  mu- 
nicipal, territorial,  or  quasi  corporations 


394 


LAW   OF  EVIDENCE. 


[PAET  m. 


created  by  the  statutes,  wliicli  have  been  passed  on  this  subject, 
or  previously  existed  at  common  law,  of  which  the  statutes  are 
declaratory,  is  not  perfectly  agreed.^  In  either  case,  the  general 
reason  and  necessity,  on  which  the  exception  is  founded,  seem  to 
require,  that  where  inhabitants  are  admissible  as  witnesses  for 
the  corporation,  they  should  also  be  compellable  to  testify  against 
it ;  but  the  jDoint  is  still  a  vexed  question.^ 

§  332.  Same  subject.  Private  corjyorations,  in  regard  to  our 
present  inquiry,  may  be  divided  into  two  classes ;  namely,  jjecu- 
niary  or  moneyed  institutions,  such  as  banks,  insurance,  and  manu- 
facturing companies,  and  the  like,  and  institutions  or  societies  for 
religious  and  charitable  purposes.  In  the  former,  membership  is 
obtained  by  the  purchase  of  stock  or  shares,  without  the  act  or 
assent  of  the  corporation,  except  prospectively  and  generally,  as 
provided  in  its  charter  and  by-laws ;  and  the  interest  thus  ac- 
quired is  private,  pecuniary,  and  vested,  like  ownership  of  any 
other  property.  In  the  latter,  membership  is  conferred  by  special 
election ;  but  the  member  has  no  private  interest  in  the  funds, 
the  whole  property  being  a  trust  for  the  benefit  of  others.  But 
all  these  are  equally  corporations  proper ;  and  it  is  the  corpora- 


are  expressly  declared  by  statutes  to  be 
competent  witnesses,  in  all  suits  in  wliicli 
the  corporation  is  a  party.  See  Maim, 
Eev.  Stat.  1840,  c.  115,  §  75;  Massachu- 
setts, Kev.  Stat.  c.  94,  §  54  ;  Vermont,  Rev. 
Stat  18;i9,  C.  31,  §  18;  New  York,  Rev. 
Stat.  vol.  i.  pp.  408,  439  (3d  ed.) ;  Pennsijl- 
vania,  Dunl.  Dig.  pp.  215,  913,  10i9, 
1165;  MIcluqnn,  Rev.  Stat.  1846,  c.  102, 
§  81 ;  Wisronsh,,  Kev.  Stat.  1849,  c.  10, 
§  21 ;  Id.  c.  98,  §  49 ;  Virginia,  Rev.  Stat. 
1849,  c.  176,  §  17  ;  Missouri,  Rev.  Stat. 
1845,  c.  34,  art.  1,  §  25.  In  New  Jersey, 
they  are  admissible  in  suits  for  moneys 
to  which  the  county  or  town  is  entitled. 
Rev.  Stat.  1846,  tit.  34,  c.  9,  §  5.  See 
Stewart  r.  Saybrook,  Wright,  374 ;  Ba- 
rada  r.  Caundelet,  8  Miss.  614. 

^  Sii/tra,  §  175,  and  the  cases  cited  in 
note.  See  also  Phil.  &  Am.  on  Evid. 
p.  395,  n.  (2)  ;  1  Phil.  Evid.  375 ;  City 
Council  I'.  King,  4  McCord,  487  ;  Mars- 
den  (•.  Stanstield,  7  B.  &  C.  815;  Rex  v. 
Kirdford,  2  East,  559. 

2  In  Re.x  I'.  Wohurn,  10  East,  395,  and 
Rex  V.  Hardwicke,  11  East,  578,  584,  586, 
589,  it  was  said  that  tliey  were  not  com- 
pellable. See,  accordingly,  Plattekill  v. 
New  Paltz,  15  .Johns.  305.  [Tiie  ques- 
tion has,  however,  ceased  to  be  of  prac- 
tical importauce  under  the  almost  uni- 


versal rule,  now  prevalent,  of  admitting 
parties  and  interested  witnesses  to  testify 
in  civil  cases.  In  some  States,  parties  in 
criminal  cases  are  by  statute  admitted, 
but  we  believe  nowiiere  compelled,  to 
testify.  In  Michit/an,  the  law  permits 
the  prisoner  to  make  a  statement  to  the 
jury,  not  under  oath;  and  this  state- 
ment is  held  to  be  evidence.  People 
V.  Jones,  26  Mich.  217.  Where  he  is 
permitted  to  testify  under  oath,  if  he 
takes  the  stand  lie  waives  his  right  to 
object  to  answering  a  question  on  the 
ground  it  will  criminate  him,  and  be- 
comes a  general  witness  upon  the  whole 
issue  to  which  he  is  a  party,  Com.  v, 
Morgan,  107  Mass.  199 ;  McGerry  v. 
People,  2  Lansing  (N.  Y.),  227 ;  and  may 
be  impeached  like  an  ordinary  witness, 
Com.  V.  Bonner,  97  Mass.  587 ;  Brandon 
V.  People,  42  N.  Y.  265.  Whether,  where 
the  statute  does  not  prohibit  any  ad- 
verse inference,  from  the  fact  that  the 
prisoner  does  not  take  the  stand,  the  fail- 
ure raises  a  presumption  against  him,  see 
State  i;.  Lawrence,  57  Maine,  574,  pio; 
People  V.  Tyler,  36  Cal.  522,  Crandall 
V.  People,  2  Lansing  (N.  Y.),  309,  contra. 
And  see  also  State  v.  Cameron,  40  Vt. 
555;  Ruloff  v.  People,  45  N.  Y.  213; 
Calkins  v.  State,  18  Ohio,  366.1 


CHAP,  n.] 


COMPETENCY   OF  WITNESSES. 


895 


tion,  and  not  the  individual  member,  that  is  party  to  the  record 
in  all  suits  by  or  against  it.^  Hence  it  follows,  that  the  declara- 
tions of  the  members  are  not  admissible  in  evidence  in  such 
actions  as  the  declarations  of  parties,^  though  where  a  member  or 
an  officer  is  an  agent  of  the  corporation,  his  declarations  may  be 
admissible,  as  part  of  the  res  gestce.^ 

§  333.  Corporators  excluded  from  interest.  But  the  inemhers 
or  stockholders,  in  institutions  created  for  private  emolument, 
though  not  parties  to  the  record,  are  7iot  therefore  admissible  as 
ivitnesses ;  for,  in  matters  in  which  the  corporation  is  concerned, 
they  of  course  have  a  direct,  certain,  and  vested  interest  which 
necessarily  excludes  them.*  Yet  the  members  of  charitahle  and 
religious  societies,  having  no  personal  and  private  interest  in  the 
property  holden  by  the  corporation,  are  competent  witnesses  in  any 
suit  in  which  the  corporation  is  a  party.  On  tliis  ground,  a  mere 
trustee  of  a  savings  bank,  not  being  a  stockholder  or  a  depositor,^ 
and  a  trustee  of  a  society  for  the  instruction  of  seamen,^  and 


1  Merchants'  Bank  v.  Cook,  4  Pick. 
405.  It  lias  been  held  in  Maine,  that  a 
corporator,  or  shareholder  in  a  moneyed 
institution,  is  substantially  a  party,  and 
therefore  is  not  compellable  to  testify 
where  the  corporation  is  party  to  the 
record.  Bank  of  Oldtown  v.  Houlton,  8 
Shepl.  501.     Shepley,  J.,  dissenting. 

2  City  Bank  v.  Bateman,  7  Har.  & 
Johns.  104,  109 ;  Hartford  Bank  v.  Hart, 
3  Day,  491,  41)5;  Magill  v.  Kauffman,  4 
S.  &  R.  317 ;  Stewart  v.  Huntingdon 
Bank,  11  S.  &  R.  267;  Atlantic  Ins.  Co. 
V.  Conard,  4  Wash.  663,  677  ;  Fairfield 
Co.  Turnpike  Comp.  v.  Thorp,  13  Conn. 
173. 

3  Supra,  §§  108,  113,  114. 

*  This  rule  extends  to  the  members  of 
all  corporations,  having  a  common  fund 
distributable  among  the  members, -and  in 
which  they  tlierefore  have  a  private  in- 
terest ;  the  pnnciple  of  exclusion  apply- 
ing to  all  cases  where  that  private  interest 
would  be  affected.  Doe  d.  Mayor  and 
Burgesses  of  Stafford  v.  Tooth,  3  Younge 
«&  Jer.  19 ;  City  Council  v.  King,  4  Mc- 
Cord,  487,  488;  Davies  v.  Morgan,  1 
Tyrwli.  457.  Where  a  corporation  would 
examine  one  of  its  members  as  a  witness, 
he  may  be  rendered  competent,  either  by 
a  sale  of  his  stock  or  interest,  where 
membership  is  gained  or  lost  in  that  way  ; 
or  by  being  disfranchised  ;  which  is  done 
by  an  information  in  the  nature  of  a  quo 
warranto  against  the  member,  who  con- 
fesses the  information,  on  wliich  the  plain- 


tiff obtains  judgment  to  disfranchise  hira. 

Mayor  of  Colchester  v. ,  1  P.  Wms. 

595.  Where  the  action  is  against  the  cor- 
poration for  a  debt,  and  the  stockholders 
are  by  statute  made  liable  for  such  debt, 
and  their  property  is  liable  to  seizure 
upon  the  execution  issued  against  the 
corporation,  a  member,  once  liable,  re- 
mains so,  notwithstanding  his  alienation 
of  stock,  or  disfranchisement,  and  there- 
fore is  not  a  competent  witness  for  the 
corporation  in  such  action.  Hovey  v. 
The  Mill-Dam  Foundry,  21  Pick.  453. 
But  where  his  liability  to  the  execution 
issued  against  the  corporation  is  not  cer- 
tain, but  depends  on  a  special  order  to 
be  granted  by  the  court,  in  its  discretion, 
he  is  a  competent  witness.  Needham  v. 
Law,  12  M.  &  W.  560.  The  clerk  of  a 
corporation  is  a  competent  witness  to 
identify  its  books  and  verify  its  records, 
although  he  be  a  member  of  the  corpora- 
tion, and  interested  in  the  suit.  Wiggin 
V.  Lowell,  8  Met.  301.  In  several  of  the 
United  States,  however,  the  members  of 
private  corporations  are  made  competent 
witnesses  by  express  statutes ;  and  in 
others,  they  are  rendered  so  by  force  of 
general  statutes,  removing  the  objection 
of  interest  from  all  witnesses.  Supra, 
§  331. 

5  Middletown  Savings  Bank  v.  Bates, 
11  Conn.  519. 

•>  Miller  v.  Mariner's  Church,  7  Greenl. 
51.  See  also  Anderson  v.  Brock,  3  Greenl. 
243 ;  Wells  v.  Lane,  8  Johns.  462 ;  Gil- 


S96 


LA"W   OF  EYIDEXCE. 


[part  m. 


trustees  of  many  other  eleemos}Tiary  institutions,  Lave  been  held 
admissible  witnesses  in  such  suits.  But  where  a  member  of  a 
private  corporation  is  inadmissible  as  a  witness  generally,  he  may 
still  be  called  upon  to  produce  the  corporate  documents,  in  an 
action  against  the  corporation ;  for  he  is  a  mere  depositary,  and 
the  party  objecting  to  his  competency  is  still  entitled  to  inquire 
of  him  concerning  the  custody  of  the  documents.^  And  if  a 
trustee,  or  other  member  of  an  eleemosynar}^  corporation,  is  liable 
to  costs,  this  is  an  interest  which  renders  him  incompetent,  even 
though  he  may  have  an  ultimate  remedy  over.^ 

§  334.  Husband  and  wife.  The  rule  by  which  parties  are  ex- 
cluded from  being  witnesses  for  themselves  applies  to  the  case  of 
husband  and  wife  ;  neither  of  them  being  admissible  as  a  witness 
in  a  cause,  civil  or  criminal,  in  which  the  other  is  a  party .^  This 
exclusion  is  founded  partly  on  the  identity  of  their  legal  rights 
and  interests,  and  partly  on  principles  of  public  policy,  which  lie 
at  the  basis  of  civil  society.  For  it  is  essential  to  the  happiness 
of  social  life  that  the  confidence  subsisting  between  husband  and 
wife  should  be  sacredly  protected  and  cherished  in  its  most  un- 
limited extent ;  and  to  break  down  or  impair  the  great  principles 
which  protect  the  sanctities  of  that  relation  would  be  to  destroy 
the  best  solace  of  human  existence.^ 


pin  v.  Vincent,  9  Johns.  219;  Nayson  v. 
Th.atclier,  7  Mass.  398;  Corn  well  r.  Isham, 

1  Day,  35;  Richardson  (•.  Freeman,  6 
Greenl.  57  ;  Weller  v.  Foundling  Hospi- 
tal, Peake's  Cas.  153  [Davies  v.  Morris, 
17  I'enn.  St.  205J. 

1  Rex  I'.  Inhabitants  of  Netherthong, 

2  M.  &  S.  287;  VVilcock  on  Municipal 
Corp.  309;  Wiggin  v.  Lowell,  8  Met.  301. 

2  Re.x  V.  St.  Mary  Magdalen,  Ber- 
mondsey,  3  East,  7. 

3  An  exception  or  qualification  of  tiiis 
rule  is  admitted,  in  cases  wliere  tlie  1ms- 
band's  account-books  liave  been  kept  by 
the  wife,  and  are  offireil  in  evidence  in 
an  action  brought  by  him  for  goods  sold, 
&c.  Here  tiie  wife  is  held  a  competent 
witness,  to  testify  that  slie  made  tlie  en- 
tries by  his  direction  and  in  his  presence  ; 
after  wiiicii  his  own  swjjpletory  oatli  may 
be  received,  as  to  the  times  wiien  tlie 
charges  were  made,  and  tiiat  they  are 
just  and  true.  Littlefield  v.  Rice,  K)  Met. 
287.  And  see  Stanton  r.  Wilson.  3  l)av, 
37;  Smith  r.  Sanford,  12  I'ick.  139.  In 
the  principal  case,  the  correctness  of  the 
contrary  decision  in  C'arr  c.  Cornell,  4 
Vt.  116,  was  denied.     In  Iowa,  husband 


and  wife  are  competent  witnesses  for, 
but  not  against,  each  other,  in  criminal 
prosecutions.  Code  of  1851,  art.  2.'»91. 
[If  tiie  wife  is  permitted  by  statute  to 
testify  in  behalf  of  the  husband,  siie  may 
be  required  on  cross-examination  to  tes- 
tify against  him.  Balentine  v.  White, 
77'renn.  St.  20.     See  also  ante,  §  329.] 

*  Stein  V.  Bowman,  13  Peters,  223, 
per  McLean,  J. ;  snpra,  §  254 ;  Co.  Lit. 
6  6;  Davis  v.  Dinwoody,  4  T.  R.  G78 ; 
Barker  v.  Dixie,  Cas.  temp.  Hardw.  204  ; 
Bentley  v.  Cooke,  3  Doug.  422,  per  Ld. 
Mansfield.  The  rule  is  the  same  in  equity. 
Vowles  V.  Young,  13  Ves.  144.  So  is 
the  law  of  Scotland.  Alison's  Practice, 
p.  461.  See  also  2  Kent,  Comm.  179,  180 ; 
Commonwealth  v.  Marsh,  10  Pick.  57  ; 
Bobbins  v.  King,  2  Leigh,  142,  144; 
Snyder  v.  Snyder,  6  Binn.  488;  Corse  v. 
Patterson,  0  liar.  &  Johns.  15;] ;  Barbat  v. 
AMen,  7  Kxchr.  609.  [This  subject  was 
very  elaborately  discussid  in  Tilton  v. 
Beechcr,  tried  in  New  York  (Brooklyn 
City  Court)  in  1875.  The  statute  of 
New  York  makes  husband  and  wife  ci>m- 
])etent  as  witnesses,  except  that  they  shall 
not  be  compellable  or  competent  to  give 


CHAP,  n.] 


COMPETENCY  OF  WITNESSES. 


397 


§  335.  Extent  of  the  rule.  The  principle  of  this  rule  requires 
its  application  to  all  cases  in  "which  the  interests  of  the  other  party 
are  involved.  And,  therefore,  the  wife  is  not  a  competent  witness 
against  any  co-defendant  tried  with  her  husband,  if  the  testimony 
concern  the  husband,  though  it  be  not  directly  given  against  him.^ 
Nor  is  she  a  witness  for  a  co-defendant,  if  her  testimony,  as  in  the 
case  of  a  conspiracy,^  would  tend  directly  to  her  husband's  acquit- 
tal ;  nor  where,  as  in  the  case  of  an  assault,^  the  interests  of  all 
the  defendants  are  inseparable  ;  nor  in  any  suit  in  which  the 
rights  of  her  husband,  though  not  a  party,  would  be  concluded 
by  any  verdict  therein ;  nor  may  she,  in  a  suit  between  others, 
testify  ^o  any  matter  for  which,  if  true,  her  husband  may  be 
indicted.*  Yet  where  the  grounds  of  defence  are  several  and  dis- 
tinct, and  in  no  manner  dependent  on  each  other,  no  reason  is 
perceived  why  the  wife  of  one  defendant  should  not  be  admitted 
as  a  witness  for  another.^ 

§  336.  Immaterial  when  the  relation  began.  It  makes  no  differ- 
ence at  ivhat  time  the  relation  of  husband  and  wife  commenced ; 


evidence  for  or  against  each  other  in 
criminal  actions  and  proceedings,  or  in 
an  action  or  proceeding  instituted  in  con- 
sequence of  adultery,  or  in  actions  for 
divorce  on  account  of  adultery,  or  in  ac- 
tions for  criminal  conversation;  and  they 
shall  not  be  compellable  to  disclose  any 
confidential  communications  made  by  one 
to  the  other  during  their  marriage.  Un- 
der tliis  statute,  the  court  held  the  plain- 
tiff to  he  competent,  except  as  to  con- 
fidential communications  touching  the 
principal  question  at  issue.  McDivitt's 
Ed.  vol.  i.  p.  350  et  spq.  See  also  ante, 
§  2.54.  Where  a  wife,  coming  suddenly 
upon  the  dead  body  of  a  person  whom 
her  husband  had  just  killed,  said  to  him, 
that  if  slie  had  been  at  lioine  this  would 
not  have  liappened,  this  was  held  to  be 
rather  a  statement  to  the  husband  to 
wliich  he  was  called  upon  to  reply,  than 
a  declaration  of  a  wife  against  her  hus- 
band.   Omara  v.  Com.,  75  Penn.  St.  424.] 

1  Hale,  P.  C.  301 ;  Dalt.  Just.  c.  Ill  ; 
Eex  V.  Hood,  1  Mood.  Cr.  Cas.  281 ;  Rex 
V.  Smith,  Id.  "289.  [Tlie  husband  is  not  a 
competent  witness  for  or  against  tlie  trus- 
tee of  the  wife's  sejiarate  estate,  in  a  suit 
between  the  trustee  and  a  third  person  in 
regard  to  the  trust  estate.  Hasbrouck  v. 
Vandervort,  5  Selden,  153.] 

2  Rex  V.  Locker,  6  Esp.  107,  per  Ld. 
Ellenborough,  who  said  it  was  a  clear  rule 
of  the  law  of  England.  The  State  v.  Bur- 
lingham,  3  Shepl.   104  [Commonwealth 


V.  Robinson,  1  Gray,  555,  550].  But 
where  several  are  jointly  indicted  for  an 
offence,  which  miglit  have  been  commit- 
ted either  by  one  or  more,  and  tliey  are 
tried  separately,  it  has  been  held  that  the 
wife  of  one  is  a  competent  witness  for  the 
others.  The  Commonwealth  v.  Manson, 
2  Ashm.  31  ;  The  State  v.  Worthing,  1 
Redington,  62 ;  infra,  §  363,  n.  But 
see  Pullen  v.  The  People,  1  Doug.  (Mich.) 
48. 

3  Rex  V.  Frederic,  2  Stra.  1095.  [See 
State  V.  Worthing,  31  Maine,  62 ;  infra, 
§  363,  n.] 

*  Den  d.  Stewart  v.  Johnson,  3  Harri- 
son, 88. 

5  Phil.  &  Am.  on  Evid.  160,  n.  (2)  ;  1 
Phil.  Evid.  75,  n.  (1).  But  where  the 
wife  of  one  prisoner  was  called  to  prove 
an  alibi  in  favor  of  another  jointly  in 
dieted,  she  was  held  incompetent,  on  the 
ground  tiiat  her  evidence  went  to  weaken 
that  of  tlie  witness  against  her  husband, 
by  showing  that  that  witness  was  mis- 
taken in  a  material  fact.  Rex  v.  Smith, 
1  Mood.  Cr.  Cas.  289.  If  the  conviction 
of  a  prisoner,  against  whom  she  is  called, 
will  strengthen  the  hope  of  pardon  for  lier 
husband,  who  is  already  convicted,  this 
goes  only  to  her  credibility.  Rex  v.  Hudd, 
1  Leach,  135,  151.  Where  one  of  two 
persons,  separately  indicted  for  the  same 
larceny,  has  been  convicted,  his  wife  is 
a  competent  witness  against  the  other. 
Reg.  V.  Williams,  8  C.  &  P.  284. 


398  LAW   OF  EVTDEXCE.  [PART  in. 

the  principle  of  exclusion  being  applied  in  its  full  extent  wher- 
ever the  interests  of  either  of  them  are  directly  concerned.  Thus, 
■where  the  defendant  married  one  of  the  plaintiffs  witnesses,  after 
she  was  actually  summoned  to  testify  in  the  suit,  she  was  held  in- 
competent to  give  evidence.^  Nor  is  there  any  difference  in  princi- 
ple between  the  admissibility  of  the  husband  and  that  of  the  wife, 
where  the  other  is  a  party .^  And  when,  in  any  case,  they  are  admis- 
sible against  each  other,  they  are  also  admissible  for  each  other.^ 

§  837.  Or  terminated.  Neither  is  it  material  that  this  relation 
no  longer  exists.  The  great  object  of  the  rule  is  to  secure  domes- 
tic happiness  by  placing  the  protecting  seal  of  the  law  upon  all 
confidential  communications  between  husband  and  wife ;  and 
whatever  has  come  to  the  knowledge  of  either  by  means  of  the 
hallowed  confidence  which  that  relation  inspires,  cannot  be  after- 
wards divulged  in  testimony,  even  though  the  other  party  be  no 
longer  living.'*  And  even  where  a  wife,  who  had  been  divorced 
by  act  of  Parliament,  and  had  married  another  person,  Avas  offered 
as  a  witness  by  the  plaintiff,  to  prove  a  contract  against  her  former 
husband,  Lord  Alvanley  held  her  clearly  incompetent ;  adding, 
with  his  characteristic  energy,  "  it  never  shall  be  endured  that  the 
confidence,  which  the  law  has  created  while  the  parties  remained 
in  the  most  intimate  of  all  relations,  shall  be  broken  whenever,  by 
the  misconduct  of  one  party,  the  relation  has  been  dissolved."  ^ 

§  338.  Exception.  This  rule,  in  its  spirit  and  extent,  is  analo- 
gous to  that  which  excludes  confidential  communications  made 
by  a  client  to  his  attorney,  and  which  has  been  already  consid- 

1  Pedley  v.  Wellesley,  3  C.  &  P.  558.  &  P.  364,  in  which  the  widow  of  a  de- 
This  case  forms  an  exception  to  the  gen-  ceased  promisor  was  admitted  by  Abbott, 
eral  rule,  that  neither  a  witness  nor  a  C.  J.,  as  a  witness  for  tiie  plaintiff  to 
party  can,  by  his  own  act,  deprive  the  prove  the  promise,  in  an  action  against 
other  party  of  a  rigiit  to  the  testimony  of  her  husband's  executors,  the  ])rinciple  of 
the  witness.  See  supra,  §  167 ;  infra,  the  rule  does  not  seem  to  have  received 
§418.  any  consideration  ;  and  the  point  was  not 

2  Rex  V.  Serjeant,  1  Ry.  &  M.  352.  saved,  the  verdict  being  for  the  defend- 
In  this  case,  the  husband  was,  on  this  ants.  See  also  Terry  v.  Belcher,  1  liai- 
ground,  held  incompetent  as  a  witness  ley,  568,  that  the  rule  excludes  the 
against  the  wife,  upon  an  indictment  testimony  of  a  husband  or  wife  separated 
against  her  and  others  for  conspiracy,  in  from  each  other,  under  articles.  See  fur- 
procuring  liim  to  marry  her.  ther,  supra,  §  254;  The  State  v.  Jolly,  3 

3  Kex  V.  Serjeant,  1  Ry.  &  M.  362.  Dev.  &  Bat.  110;  Barnes  v.  Camack,  1 
♦  Stein  0.  Bowman,  13  Peters,  209.  Barb.  302.  [In  an  action  on  the  case 
6  Monroe  v.  Twistleton,  Peake's  Evid.     brought  by  a  l)usband  for  criminal  con- 

App.  Ixxxvii.  [xci.|,  expotindcd  and  con-  versation  with  liis  wife,  the  latter,  after  a 

firmed  in  Aveson  v.  Lord  Kinnaird,0  East,  divorce  from  the  bonds  of  matrimony,  is 

102,  103,  per  Ld.  Ellenboroiigh,  and  in  a  competent  witness  in  favor  of  the  hus- 

Doker  v.  Hasier,  Ry.  &  M.  108,  per  Best,  band,  to  prove  the  charge  in  the  declara- 

C.  J.;  Stein  u.  Bowman,  13  Peters,  223.  tion.     Dickerman  u.  Graves,  6  Cusli.  808," 

In  the  case  of  Bevcridge  v.  Minter,  1  C.  infra,  §  344,  n.| 


CHAP,  n.]  COMPETENCY   OF   TVITNESSES.  399 

erecl.i  Accordingly,  the  wife,  after  the  death  of  the  husband,  has 
been  held  competent  to  prove  facts  coming  to  her  knowledge  from 
other  sources^  and  not  by  means  of  her  situation  as  a  wife,  not- 
withstanding they  related  to  the  transactions  of  her  husband.^ 

§  339.  Marriage  must  be  lawful.  This  rule  of  protection  is  ex 
tended  only  to  lawful  marriages^  or  at  least  to  such  as  are  inno- 
cent in  the  eye  of  the  law.  If  the  cohabitation  is  clearly  of  an 
immoral  character,  as,  for  example,  in  the  case  of  a  kept  mistress, 
the  parties  are  competent  witnesses  for  and  against  each  other.^ 
On  the  other  hand,  upon  a  trial  for  polygamy,  the  first  marriage 
being  proved  and  not  controverted^  the  woman,  with  whom  the 
second  marriage  was  had,  is  a  competent  witness ;  for  the  second 
marriage  is  void.*  But  if  the  proof  of  the  first  marriage  were 
doubtful,  and  the  fact  were  controverted,  it  is  conceived  that  she 
would  not  be  admitted.^  It  seems,  however,  that  a  reputed  or 
supposed  wife  may  be  examined  on  the  voir  dire,  to  facts  showing 
the  invalidity  of  the  marriage.^  Whether  a  woman  is  admissible 
in  favor  of  a  man  with  whom  she  has  cohabited  for  a  long  time 
as  his  wife,  whom  he  has  constantly  represented  and  acknowledged 
as  such,  and  by  whom  he  has  had  children,  has  been  declared  to 
be  at  least  doubtful."  Lord  Kenyon  rejected  such  a  witness,  when 
ofi'ered  by  the  prisoner,  in  a  capital  case  tried  before  him ;  ^  and 
in  a  later  case,  in  which  his  decisions  were  mentioned  as  entitled 
to  be  held  in  respect  and  reverence,  an  arbitrator  rejected  a  wit- 
ness similarly  situated  ;  and  the  court,  abstaining  from  any  opin- 
ion as  to  her  competency,  confirmed  the  award,  on  the  ground 
that  the  law  and  fact  had  both  been  submitted  to  the  arbitrator.^ 

1  Snpra,  §§  240,  243,  244,  338.  which  he  is  charged  with  having  stolen. 

2  Coffin  V.  Jones,  13  Pick.  445 ;  "Wil-     Alison's  Pr.  p.  4(33. 

Hams  V.   Baldwin,    7    Vt.    506;    Cornell  «  Peat's  case,  2   Lew.  Cr.   Gas.  288; 

r.  Vanartsdalen,  4   Barr,  364  ;  Wells  v.  "Wakefield's  case,  Id.  279. 
Tucker,  3  Binn.  366.     And  see  Saunders  '  1  Price,  88,  89,  per  Thompson,  C.  B. 

V.  Hendrix,  5  Ala.  224;  McGuire  v.  Ma-  If  a  woman  sue  as  a.  feme  sole,  her  hus- 

loney,  1  B.  Monr.  224.  band  is  not  admissible  as  a  witness  for  the 

3  Batthews  v.  Galindo,  4  Bing.  610.  defendant,  to  prove  her  a  feme  covert, 
<  Bull.  N.  P.  287.  thereby  to  nonsuit  her.  Bentley  y.  Cooke, 
6  If  the  fact  of  the  second  marriage  is  Tr.  24  Geo.  III.,  B.  R.,  cited  2  T.  R.  266, 

in   controversy,   the   same   principle,  it  269 ;  s.  c.  3  Doug.  422. 

seems,  will  exclude  the  second  wife  also.  *  Anon.,  cited  by  Richards,   B.,  in  1 

See  2  Stark.  Evid.  400 ;  Grigg's  case,  T.  Price,  83. 

Raym.  1.     But   it   seems,  that  the  wife,  ^  Campbell  v.  Twemlow,  1  Price,  81, 

thougli  inadmissible  as  a  witness,  may  be  88,  90,  91.     Richards,  B.,  observed,  that 

produced  in  court  for  the  purpose  of  being  he  should  certainly  have  done  as  the  ar- 

identified,  although  the  proof  thus  fur-  bitrator  did.     To  admit  the  witness  in 

nished  may  affix  a  criminal  charge  upon  such  a  case  would  both  encourage  immo- 

the  husband  ;  as,  for  example,  to  show  rality,  and   enable  the  parties   at   their 

that  she  was  the  person  to  whom  he  was  pleasure  to  perpetrate  fraud,  by  admitting 

first  married;   or,  who  passed  a  note,  or  denying  the  marriage,  as  may  suit 


400  LAW   OF  EVIDENCE.  [PAET  in. 

It  "would  doubtless  be  incompetent  for  another  person  to  offer  the 
testimony  of  an  acknowledged  wife,  on  the  ground  that  the  par- 
ties were  never  legally  married,  if  that  relation  were  always  rec- 
ognized and  believed  to  be  lawful  by  the  parties.  But  where  the 
parties  had  lived  together  as  man  and  wife,  believing  themselves 
lawfully  married,  but  had  separated  on  discovering  that  a  prior 
husband,  supposed  to  be  dead,  was  still  living,  the  woman  was 
held  a  competent  witness  against  the  second  husband,  even  as  to 
facts  communicated  to  her  by  him  during  their  cohabitation.^ 

§  340.  Whether,  upon  consent  of  husband,  vrife  may  testify. 
Whether  the  rule  may  be  relaxed,  so  as  to  admit  the  wife  to  tes- 
tify against  the  husband,  hy  his  consent,  the  authorities  are  not 
agreed.  Lord  Hardwicke  was  of  opinion  that  she  was  not  admis- 
sible, even  with  the  husband's  consent ;  ^  and  this  opinion  has  been 
followed  in  this  country ;  ^  apparently  upon  the  ground,  that  the  in- 
terest of  the  husband  in  preserving  the  confidence  reposed  in  her  is 
not  the  sole  foundation  of  the  rule,  the  public  having  also  an  inter- 
est in  the  preservation  of  domestic  peace,  which  might  be  disturbed 
by  her  testimony,  notwithstanding  his  consent.  The  very  great 
temptation  to  perjury,  in  such  case,  is  not  to  be  overlooked.* 
But  Lord  Chief  Justice  Best,  in  a  case  before  him,^  said  he  would 
receive  the  evidence  of  the  wife,  if  her  husband  consented;  ap- 
parently regarding  only  the  interest  of  the  husband  as  the  ground 
of  her  exclusion,  as  he  cited  a  case,  where  Lord  Mansfield  had 
once  permitted  a  plaintiff  to  be  examined  with  his  own  consent. 

§  341.  Where  not  parties  to  record,  but  directly  interested.  Where 
the  husband  or  wife  is  not  a  party  to  the  record,  but  yet  has  an 
interest  directly  involved  in  the  suit,  and  is  therefore  incompetent 
to  testify,  the  other  also  is  incompetent.  Thus,  the  wife  of  a  bank- 
rupt cannot  be  called  to  prove  the  fact  of  his  bankruptcy.^  And 
the  husband  cannot  be  a  witness  for  or  against  his  wife,  in  a 
question  touching  her  separate  estate,  even  though  there  are  other 

their  convenience.     Hence,  cohabitation  264 ;   Sedfjwick  v.  Walkins,  1  Ves.  49  ; 

and   ncknowiodLjment,   as    iiusband   and  Grifjfi's  case,  T.  Raym.  1. 

wife,  are  helil  conclusive  against  tlie  par-  ^  Handall's  case,  5  City  Hall  Rec.  141, 

tics,  in  ail  cases,  except  where  the  fact  or  158,    154.      See    also   Colbern's  case,    1 

the  incidents  of  marriage,  sucii  as  legiti-  Wiieeler's  Crim.  Cas.  479. 

macy  and  iniieritance,  are  directly  in  con-  *  Davis  v.  Dinwoody,  4  T.  R.  679,  per 

troversy.     See  also  Divoll  v.  Leadbetter,  Ld.  Kenyon. 

4  I'ick.  220.  »  Ped'ley  v.  "Wellesley,  3  C.  &  P.  558. 

»  Wells   V.  Fletcher,  6  C.   &  P.    12;  6  A'x />arte  James,  1  P.  Wms.GlO,  GU. 

"Wells  I'.  Fislier,  1  M.  &  R.  00,  and  n.  .  But  she  is  made  competent  by  statute,  to 

'^  Barker  v.  Dixie,  Cas.  temp.  Hardw.  make  discovery  of  his  estate.     G  Geo.  IV. 

c.  16,  §  37. 


CHAP,  n.] 


COMPETENCY   OF   WITNESSES. 


401 


parties  in  respect  of  -whom  he  would  be  competent.^  So,  also, 
where  the  one  party,  though  a  competent  witness  in  the  cause,  is 
not  bound  to  answer  a  particular  question,  because  the  answer 
would  directly  and  certainly  expose  him  or  her  to  a  criminal 
prosecution  and  conviction,  the  other,  it  seems,  is  not  obliged  to 
answer  the  same  question.^  The  declarations  of  husband  and  wife 
are  subject  to  the  same  rules  of  exclusion  which  govern  their 
testimony  as  witnesses.^ 

§  342.  May  testify  in  collateral  proceedings.  But  though  the 
husband  and  wife  are  not  admissible  as  witnesses  against  each 
other,  where  either  is  directly  interested  in  the  event  of  the  pro- 
ceeding, whether  civil  or  criminal ;  yet,  in  collateral  proceedings, 
not  immediately  affecting  their  mutual  interests,  their  evidence 
is  receivable,  notwithstanding  it  may  tend  to  criminate,  or  may 
contradict  the  other,  or  may  subject  the  other  to  a  legal  demand.* 


1  1  Burr.  424,  per  Ld.  Mansfield ;  Da- 
vis V.  Dinwoody,  4  T.  R.  678  ;  Snyder  v. 
Snyder,  6  Binn.  443  ;  Langley  i'.  Fisher, 
5  Beav.  443.  But  wliere  the  interest  is 
contingent  and  uncertain,  he  is  admissible, 
llicliardson  v.  Learned,  10  Pick.  2t51.  See 
further,  Hatfield  v.  Thorp,  5  B.  &  Aid. 
589  ;  Cornish  v.  Pugh,  8  D.  &  R.  65  ;  12 
Vin.  Abr.  Evidence,  B.  If  an  attesting 
witness  to  a  will  afterwards  marries  a  fe- 
male legatee,  the  legacy  not  being  given 
to  her  separate  use,  he  is  inadmissible  to 
prove  the  will.  Mackenzie  v.  Yeo,  '1  Curt. 
509.  The  wife  of  an  executor  is  also  in- 
competent. Young  V.  Richard,  Id.  371. 
But  where  the  statute  declares  the  legacy 
void  which  is  given  to  an  attesting  wit- 
ness of  a  will,  it  has  been  held,  that,  if  the 
husband  is  a  legatee  and  the  wife  is  a 
witness,  the  legacy  is  void,  and  the  wife 
is  admissible.  Winslow  o.  Kimball,  12 
Shepl.  493. 

2  See  Phil.  &  Am.  on  Evid.  168  ;  Den 
I'.  Johnson,  3  Harr.  87. 

3  Alban  i:  Pritchett,  6  T.  R.  680 ; 
Denn  v.  White,  7  T.  R.  112;  Kellv  v. 
Small,  2  Esp.  716  ;  Bull.  N.  P.  28  ;  Wins- 
more  v.  Greeubank,  Willes,577.  Whether, 
where  the  liusband  and  wife  are  jointly 
indicted  for  a  joint  offence,  or  are  other- 
wise joint  parties,  their  declarations  are 
mutually  receivable  against  each  other,  is 
still  questioned ;  the  general  rule,  as  to 
persons  jointly  concerned,  being  in  favor 
of  their  admissibility,  and  the  policy  of 
the  law  of  husband  and  wife  being  against 
it.  See  Commonwealth  v.  Bobbins,  3 
Pick.  63 ;  Commonwealth  v.  Brisjgs,  5 
Pick.  429 ;   Evans  v.   Smith,  5  Monroe, 


363,  364;  Turner  v.  Coe,  5  Conn.  93. 
The  declarations  of  the  wife,  however, 
are  admissible  for  or  against  the  husband, 
wherever  tiiey  constitute  part  of  the  res 
gestce  which  are  material  to  be  proved  ;  as, 
where  he  obtained  insurance  on  her  life  as 
a  person  in  health,  she  being  in  fact  dis- 
eased, Averson  v.  Lord  Kinnaird,  6  East, 
188  ;  or,  in  an  action  by  him  against  an- 
other for  beating  her,  Thompson  ;;.  Free- 
man, Skin.  402 ;  or,  for  enticing  her  away, 
Gilchrist  v.  Bale,  8  Watts,  3.55;  or,  in  iin 
action  against  him  for  her  board,  he  hav- 
ing turned  her  out  of  doors,  Walton  v. 
Green,  1  C.  &  P.  621.  So,  where  she 
acted  as  his  agent,  supra,  §  334,  n. ; 
Thomas  i'.  Hargrave,  Wright,  -595.  But 
her  declarations  made  after  marriage,  in 
respect  to  a  debt  previously  due  by  her, 
are  not  admissible  for  the  creditor,  in  an 
action  against  the  husband  and  wife,  for 
the  recovery  of  that  debt.  Brown  v.  La- 
selle,  6  Blackf.  147.  [Where  a  witness 
denied  that  he  had  told  his  wife  that 
the  prisoner  acted  only  in  self-defence,  the 
wife  cannot  be  called  to  contradict  the 
husband.  Murpliv  v.  Com.,  23  Gratt. 
(Va.)  960.     See  (///^^  §  251.] 

*  Fitch  V.  Hill,  11  -Mass.  286;  Baring 
V.  Reeder,  1  Hen.  &  Mun.  154,  168,  per 
Roane,  J.  In  Gritiin  v.  Brown,  2  Pick. 
308,  speaking  of  the  cases  cited  to  this 
point,  Parker,  C.  J  ,  said  :  "  They  estab- 
lish this  principle,  that  the  wife  may  be  a 
witness  to  excuse  a  party  sued  for  a  sup- 
posed liability,  altliough  the  effect  of  her 
testimony  is  to  charge  iier  husband  upon 
the  same  del)t,  in  an  action  afterwards  to 
be  brought  against  him.     And  tiie  reason 


20 


402  LAW   OF  EVIDENCE.  [PAE,T  IH. 

Thus,  where,  in  a  question  upon  a  female  pauper's  settlement,  a 
man  testified  that  he  was  married  to  the  pauper  upon  a  certain 
day,  and  another  woman,  being  called  to  prove  her  own  marriage 
with  the  same  man  on  a  previous  day,  was  objected  to  as  inc  nn- 
petent,  she  was  held  clearly  admissible  for  that  purpose  ;  for 
though,  if  the  testimony  of  both  was  true,  the  husband  was  charge- 
able with  the  crime  of  bigamy,  yet  neither  the  evidence,  nor  the 
record  in  the  present  case,  could  be  received  in  evidence  against 
him  upon  that  charge,  it  being  res  inter  alios  acta,  and  neither 
the  husband  nor  the  wife  having  any  interest  in  the  decision.^ 
So,  where  the  action  was  by  the  indorsee  of  a  bill  of  exchange, 
against  the  acceptor,  and  the  defence  was,  that  it  had  been 
fradulently  altered  by  the  drawer,  after  the  acceptance ;  the  wife 
of  the  drawer  was  held  a  competent  witness  to  prove  the  altera- 
tion.2 

§  343.  Exceptions  to  the  rule  of  exclusion.  To  this  general  rule, 
excluding  the  husband  and  wife  as  witnesses,  there  are  some  ex- 
ceptions; wliich  are  allowed  from  the  necessity  of  the  case,  partly 
for  the  protection  of  the  wife  in  her  life  and  liberty,  and  partly 
for  the  sake  of  public  justice.  But  the  necessity  which  calls  for 
this  exception  for  the  wife's  security  is  described  to  mean,  "  not 
a  general  necessity,  as  where  no  other  witness  can  be  had,  but  a 
particular  necessity,  as  where,  for  instance,  the  wife  would  other- 
wise be  exposed,  without  remedy,  to  personal  injury."  ^  Thus,  a 
woman  is  a  competent  witness  against  a  man  indicted  for  forcible 
abduction  and  marriage,  if  the  force  were  continuing  upon  her 

is,  that  the  verdict  in  the  action,  in  which  and  restricted;  Lord  EUenborough  re- 
she  testifies,  cannot  be  used  in  the  action  marking,  that  the  rule  was  there  laid 
against  her  husband;  so  that,  although  down  "  somewhat  too  largely."  In  Kex 
her  testimony  goes  to  show  that  lie  is  v.  Bathwick,  it  was  held  to  be  "  undoubt- 
chargeable,  yet  he  cannot  be  prejudiceil  edly  true  in  the  case  of  a  direct  charge 
by  it.  And  it  may  be  observed,  tliat,  in  and  proceeding  against  him  for  any  of- 
these  very  cases,  the  husband  himself  fence,"  but  was  denied  in  its  application 
would  be  a  competent  witness,  if  he  were  to  collateral  matters.  But  on  the  trial  of 
wiHin','  to  testify,  for  his  evidence  would  a  man  for  the  crime  of  adultery,  the  hus- 
be  a  confession  against  himself."  Wil-  band  of  the  woman  with  whom  the  crime 
liams  V.  Johnson,  1  Stra.  504 ;  Vowles  r.  was  alk'ged  to  have  been  committi'd  has 
Young,  13  Ves.  144;  2  Stark.  Evid.  401.  been  held  not  to  be  admissible  as  a  witness 
See  aAso  Mr.  Hargrave's  note  [2y]  to  Co.  fortheprosecution.ashistestimony  would 
Lit.  6  /).  go  directly  to  charge  the  crime  upon  his 
1  Rex  V.  Bathwick,  2  B.  &  Ad.  630,  wife.  The  State  >;.  Welch,  13  Shepl.  30. 
647;  8.  p.  Hex  i-.  All  Saints,  G  M.  &  S.  '^  Henman  i'.  Dickenson,  5  liing.  183. 
194.  In  this  case,  the  previous  decision  »  Bentley  )•.  Cooke,  3  Doug.  4-J2,  per 
in  Rex  v.  Cliviger,  2  T.  R.  2(i3,  to  the  Ld.  Mansfield.  In  Sedgwick  r.  Walkins, 
effect  that  a  wife  was  in  every  case  in-  1  Ves.  49,  Lord  Thurlow  spoke  of  this  ne- 
compctent  to  give  evidence,  even  trndinrj  cessity  as  extending  only  t()  security  of 
to  criminate  her  husband,  was  considered  the  peace,  and  not  to  an  indictment. 


CHAP,  n.] 


COMPETENCY  OF   "WITNESSES. 


403 


until  tlie  marriage  ;  of  which  fact  she  is  also  a  competent  wit- 
ness ;  and  this,  by  the  weight  of  the  authorities,  notwithstanding 
her  subsequent  assent  and  voluntary  cohabitation  ;  for  otherwise, 
the  offender  would  take  advantage  of  his  wrong.i  So,  she  is  a 
competent  witness  against  him  on  an  indictment  for  a  rape,  com- 
mitted on  her  own  person  ;  ^  or,  for  an  assault  and  battery  upon 
her;  3  or,  for  maliciously  shooting  her.*  She  may  also  exhibit 
articles  of  the  peace  against  him;  in  which  case  her  aiSidavit 
shall  not  be  allowed  to  be  controlled  and  overthrown  by  his  own.^ 
Indeed,  Mr.  East  considered  it  to  be  settled,  that  "  in  all  cases 
of  personal  injuries  committed  by  the  husband  or  wife  against 
each  other,  the  injured  party  is  an  admissible  witness  against  the 
other."  ^  But  Mr.  Justice  Holroyd  thought  that  the  wife  could 
only  be  admitted  to  prove  facts,  which  could  not  be  proved  by 
any  other  witness.'^ 

§  344.  Secret  facts.  The  wife  has  also,  on  the  same  ground  of 
necessity,  been  sometimes  admitted  as  a  witness  to  testify  to 
ueret  facts,  which  no  one  but  herself  could  know.  Thus,  upon 
an  appeal  against  an  order  of  filiation,  in  the  case  of  a  married 
woman,  she  was  held  a  competent  witness  to  prove  her  criminal 
connection  with  the  defendant,  though  her  husband  was  inter- 
ested in  the   event ;  ^  but  for  reasons   of  public   decency  and 


1  1  East's  P.  C.  454 ;  Brown's  case,  1 
Ventr.  243 ;  1  Russ.  on  Crimes,  572 ; 
Wakefield's  case,  2  Lewin,  Cr.  Cas.  1, 
20,  279.  See  also  Reg.  v.  Yore,  1  Jebb 
&  Symes,  563,  572 ;  Perry's  case,  cited 
in  McNally's  Evid.  181 ;  Rex  v.  Serjeant, 
Ry.  &  M.  352  ;  1  Hawk.  P.  C.  c.  41,  §  13  ; 
2  Russ.  on  Crimes,  605,  606.  This  case 
may  be  considered  anomalous  ;  for  she 
can  hardly  be  said  to  be  liis  wife,  the 
marriage  contract  having  been  obtained 
by  force.  1  Bl.  Comm.  443 ;  McNally's 
Evid.  179,  180;  3  Chitty's  Crim.  Law, 
817.  n.  (y)  ;  Roscoe's  Crim.  Evid.  115. 

2  Lord  Audley's  case,  3  Howell's  St. 
Tr.  402,  413;  Hutton,  115,  116;  Bull. 
N.  P.  287. 

8  Lady  Lawley's  case,  Bull.  N.  P.  287  ; 
Rex  V.  Azire,  1  Stra.  633  ;  Soule's  case,  5 
Greenl.  407  ;  The  State  v.  Davis,  3  Brev- 
ard, 3. 

*  Whitehouse's  case,  cited  2  Russ.  on 
Crimes,  606. 

*  Rex  V.  Doherty,  13  East,  171  ;  Lord 
Vane's  case,  Id.  n.  (a)  ;  2  Stra.  1202  ; 
Rex  V.  Earl  Ferrers,  1  Burr.  635.  Her 
affidavit  is  also  admissible,  on  an  applica- 
tion for  an  information  against  him  for  an 


attempt  to  take  her  by  force,  contrary  to 
articles  of  separation.  Lady  Lawley's  case, 
Bull.  N.  P.  287  ;  or,  in  a  habeas  corpus 
sued  out  by  him  for  the  same  object.  Rex 
V.  Mead,  1  Burr.  642. 

e  1  East's  P.  C.  455.  In  Wakefield's 
case,  2  Lewin,  Cr.  Cas.  287,  Hullock,  B., 
expressed  himself  to  the  same  effect, 
speaking  of  the  admissibility  of  the  wife 
only.  2  Hawk.  P.  C.  c.  46,  §  77  ;  The 
People  ex  rel.  Ordronaux  v.  Chegaray,  18 
Wend.  642. 

'  In  Rex  V.  Jagger,  cited  2  Russ.  on 
Crimes,  606.  [The  wife  is  not  a  compe- 
tent witness  against  the  husband,  in  an 
indictment  against  him  for  subornation 
of  perjury  to  wrong  her  in  a  judicial 
proceeding.  People  v.  Carpenter,  9  Barb. 
580.] 

8  Rex  V.  Reading,  Cas.  temp.  Hardw. 
79,  82 ;  Rex  v.  Luffe,  8  East,  193 ;  Com- 
monwealth V.  Shepherd,  6  Binn.  283 ; 
The  State  v.  Pettaway,  3  Hawks,  623. 
So,  after  divorce  a  vinculo,  the  wife  may 
be  a  witness  for  her  late  husband,  in  an 
action  brought  by  him  against  a  third 
person,  for  criminal  conversation  with  lier 
during  the  marriage.     Ratcliff  v.  Wales, 


404  LAW   OF  EVIDENCE.  [PAET  HI. 

morality,  she  cannot  be  allowed  to  say,  after  marriage,  that  she 
had  no  connection  with  her  husband,  and  that  therefore  her  off- 
spring is  spurious.^ 

§  345.  High  treason.  In  cases  of  high  treason,  the  question 
whether  the  wife  is  admissible  as  a  witness  against  her  husband 
has  been  much  discussed,  and  opinions  of  great  weight  have  been 
given  on  both  sides.  The  affirmative  of  the  question  is  main- 
tained,2  on  the  ground  of  the  extreme  necessity  of  the  case,  and 
the  nature  of  the  offence,  tending  as  it  does  to  the  destruction  of 
many  lives,  the  subversion  of  government,  and  the  sacrifice  of 
social  happiness.  For  the  same  reasons,  also,  it  is  said,  that  if  the 
wife"should  commit  this  crime,  no  plea  of  coverture  shall  excuse 
her ;  no  presumption  of  the  husband's  coercion  shall  extenuate 
her  guilt.3  But,  on  the  other  hand,  it  is  argued,  that,  as  she  is 
not  bound  to  discover  her  husband's  treason,*  by  parity  of  reason 
she  is  not  compellable  to  testify  against  him.^  The  latter  is 
deemed,  by  the  later  text-writers,  to  be  the  better  opinion.^ 

§  346.  Dying  declaration.  Upon  the  same  principle  on  which 
the  testimony  of  the  husband  or  wife  is  sometimes  admitted,  as 
well  as  for  some  other  reasons  already  stated,'^  the  dying  declara- 
tions of  either  are  admissible,  where  the  other  party  is  charged 
with  the  murder  of  the  declarant.^ 

§  347.  Disqualifying  interest.  The  rule,  excluding  parties  from 
being  -witnesses,  applies  to  all  cases  where  the  party  has  any 
interest  at  stake  in  the  suit,  although  it  be  only  a  liability  to 
costs.     Such  is  the  case  of  a  prochein  ami,^  a  guardian,  an  execu- 

1  Hill  (N.  Y.),  G.3  ;  Dickerman  v.  Graves,  6  Am.  on  Evid.  161 ;  1  Phil.  Evid.  71.  See 
Cush.  31)8.     So,  it  lias  been  held,  that,  on     also  2  Stark.  Evid.  404,  n.  (h) 

an  indictment  against  him  for  an  assault  "^  Supra,  §  156. 

and  battery  upon  her,  she  is  a  competent  ^  Rex  v.  Woodcock,  2  Leach,  563  ;  Mc- 

witness  for  him,  to  disprove  the  charge.  Nally's  Evid.  174;  Stoop's  case,  Addis. 

The  State  v.  Neil,  6  Ala.  685.  381 ;  The  People  v.  Green,  1  Denio.  614. 

1  Cope  V.  Cope,  1  M.  &  Rob.  269,  "  In  il/assac/i((sc»s,  by  force  of  the  stat- 
274  ;  Goodright  v.  Moss,  Cowp.  5'J4  ;  utes  respecting  costs,  a  prochein  ami  is  not 
tupra,  §  28.  liable  to  costs,  Crandall  v.  Slaid,  11  Met. 

2  These  authorities  may  be  said  to  288 ;  and  would  therefore  seem  to  be  a 
favor  the   affirmative    of   the  question  :  competent  witness.     And  by  Stat.  1839, 

2  Huss.  on  Crime8,G07  ;  Bull.  N.  P.  286 ;  c.  107,  §  2,  an  executor,  administrator, 
1  Gilb.  Evid.  by  Lofft,  252;  Mary  guardian,  or  trustee,  though  a  party,  if 
Grigg's  case,  T.  Raym.  1 ;  2  Stark.  Evid.  liable  only  to  costs,  is  made  competent  to 
404.  testify  to  any  matter  known  to  him,  "be- 

•'  4  BI.  Comm.  29.  fore  lie  assumed  the  trust  of  his  ai)pi)int- 

<  1  Brownl.  47.  nient."     In  Vinjinla,  any  such  trustee  is 

•^  1    Hale's   P.  C.  48,  301  ;    2    Hawk,  admissible  as  a  witness,  generally,  pro- 

P.  C.  c.  46,  §  82  ;  2  Bac.  Ab.  578,  tit.  Kvid.  vided  some  other  person  sliall  first  stipu- 

A,   1  ;  1   Chittv's  Crini.   Law,  595;  Mc-  late  in  his  stead  for  the  costs  to  which  he 

Nally's  Evid.  181.  may  be  liable.     Rev.   Stat.  1849,  c.  176, 

6  Roscoe's  Grim.  Evid.  114 ;  Phil.  &  §  18. 


CHAP,  n.]  COMPETENCY   OF   WITNESSES.  405 

tor  OT  administrator;  and  so  also  of  trustees  and  the  officers  of 
corporations,  whether  public  or  private,  wherever  they  are  liable 
in  the  first  instance  for  the  costs,  though  they  may  have  a  remedy 
for  reimbursement  out  of  the  public  or  trust  funds.^ 

§  348.  PaAies  may  testify  in  certain  cases.  But  to  the  general 
rule,  in  regard  to  parties,  there  are  some  exceptions  in  which  the 
party's  otvn  oath  may  be  received  as  competent  testimony.  One 
class  of  these  exceptions,  namely,  that  in  which  the  oath  in  litem 
is  re(ieived,  has  long  been  familiar  in  courts  administering  re- 
medial justice,  according  to  the  course  of  the  Roman  law,  though 
in  the  common-law  tribunals  its  use  has  been  less  frequent  and 
more  restricted.  The  oath  in  litem  is  admitted  in  two  classes  of 
cases :  first,  where  it  has  been  already  proved  that  the  party 
against  whom  it  is  offered  has  been  guilty  of  some  fraud  or  other 
tortious  and  umvarrantable  act  of  intermeddliiig  with  the  com- 
plainant's goods,  and  no  other  evidence  can  be  had  of  the  amount 
of  damages ;  and,  secondly,  where,  on  general  grounds  of  public 
policy,  it  is  deemed  essential  to  the  purposes  of  justice. ^  An  ex- 
ample of  the  former  class  is  given  in  the  case  of  the  bailiffs,  who, 
in  the  service  of  an  execution,  having  discovered  a  sum  of  money 
secretly  hidden  in  a  wall,  took  it  away  and  embezzled  it,  and  did 
great  spoil  to  the  debtor's  goods  ;  for  which  they  were  holden  not 
only  to  refund  the  money,  but  to  make  good  such  other  damage 
as  the  plaintiff  would  swear  he  had  sustained.^  So,  where  a  man 
ran  away  with  a  casket  of  jewels,  he  was  ordered  to  answer  in 
equity,  and  the  injured  party's  oath  was  allowed  as  evidence,  in 
odium  spoliatoris.^  The  rule  is  the  same  at  law.  Thus,  where  a 
shipmaster  received  on  board  his  vessel  a  trunk  of  goods,  to  be 
carried  to  another  port,  but  on  the  passage  he  broke  open  the 
trunk  and  rifled  it  of  its  contents  ;  in  an  action  by  the  owner  of 

J  Hopkins  w.  Neal,  2  Stra.  1026 ;  James  16  Mass.  118,121;  Sears  r.  Dillingham, 

V.  Hatfield,  1  Stra.  548;  1  Glib.  Evid.  by  12  Mass.  360.     See  also  Willis  on  Tnis- 

Lofft,  p.  225;  Rex  v.  St.  Mary  Magdalen,  tees,    pp.   227-229;    Frear    v.   Evertson, 

Bcrmondsey,   3   East,    7;    Wliitmore    v.  20  Johns.  142;  Bellamy  t;.  Cains,  3  llich. 

Wilks,  1  Mood.  &  M.  220,  221 ;  Gresley  354  [supra,  §  329  and  n.]. 

on  Kvid.  242,  243,  244;  Bellew  v.  Russell,  ^  Tait  on  Evid.  280. 

1  Ball  &  Beat.  99  ;  Wolley  i>.  Brownhill,  3  Childrens  v.  Saxby,  1  Vern.  207;  s.C. 

13  Price,  513,  514,  per  HuUock,  B. ;  Bar-  1  Eq.  Ca.  Ab.  229. 

rett  V.   Gore,   3   Atk.  401 ;  Fountain  v.  ^  Anon.,  cited  per  the  Lord  Keeper,  in 

Coke,  1  Mod.  107 ;  Goodtitle  v.  Welford,  E.  Ind.   Co.  v.  Evans,  1  Vern.  308.     On 

1  Doug.  139.     In  this  country,  where  the  the   same   principle,  in  a  case  of   gross 

party  to  the  record  is,  in  almost  every  fraud,  chancery  will  give  costs,  to  be  as- 

casei^  liable  to  costs  in  the  first  instance,  certained  by  the  party's  own  oath.    Dyer 

in  suits  at  law,  he  can  hardly  ever  be  v.  Tymewell,  2  Vern.  122. 
competent  as  a  witness.     Fox  v.  Adams, 


406 


LAW   OF   EVIDENCE. 


[part  m. 


tlie  goods  against  the  shipmaster,  the  plaintiff,  proving  aliunde 
the  delivery  of  the  trunk  and  its  violation,  was  held  competent 
as  a  witness,  an  the  ground  of  necessity,  to  testify  to  the  particu- 
lar contents  of  the  trunk.i     ^^^^  q^  the  same  principle,  the 


1  Herman  v.  Drinkwater,  1  Greenl.  27. 
See  also  Sneider  v.  Geiss,  1  Yeates,  34 ; 
Anon.,  coram  Montaprue,  B.,  12  Vin.  Abr. 
•24,  Witnesses,  I,  pi.  34.  Sed  vid.  Bingham 
V.  Rogers,  6  Watts  &  Serg.  495.  The  case 
of  Herman  v.  Drinkwater  was  cited  and 
tacitly  reaffirmed  by  the  court  in  Gilmore 
V.  Bowden,  3  Fairf .  412  ;  the  admissibility 
of  tlie  party  as  a  witness  being  placed  on 
the  ground  of  necessity.  But  it  is  to  be 
observed  that,  in  Herman  v.  Drinkwater, 
the  defendant  was  guilty  of  gross  fraud, 
at  least,  if  not  of  larceny.  It  was  on  this 
ground  of  gross  fraud  and  misconduct 
that  the  rule  in  this  case  was  agreed  to  in 
Snow  V.  The  Eastern  Railroad  Co.,  12 
Met.  44 ;  the  court  denying  its  applica- 
tion in  cases  of  necessity  alone,  and  in 
the  absence  of  fraud.  Therefore,  where 
an  action  on  the  case  was  brought  by  a 
passenger  against  a  railway  company,  for 
the  loss  of  his  trunk  by  their  negligence, 
there  being  no  allegation  or  proof  of 
fraud  or  tortious  act,  the  court  held,  that 
the  plaintiff' was  not  admissible  as  a  wit- 
ness, to  testify  to  the  contents  of  his 
trunk.  Ibid.  As  this  decision,  which 
lias  been  reported  since  the  last  editicm 
of  this  work,  is  at  variance  witii  that  of 
Clark  u.  Spence,  cited  in  the  next  note, 
tlie  following  observations  of  the  court 
should  be  read  by  tiie  student  in  tliis 
connection:  "The  law  of  evidence  is 
not  of  a  fleeting  character;  and  though 
new  cases  are  occurring,  calling  for  its 
application,  yet  the  law  itself  rests  on  the 
foundation  of  the  ancient  common  law, 
one  of  the  fundamental  rules  of  which  is, 
tiiat  no  person  shall  be  a  witness  in  his 
own  case.  Tliis  rule  has  existed  for  ages, 
witli  very  little  modification,  and  has 
yielded  only  where,  from  the  nature  of 
the  case,  other  evidence  was  not  to  be  ob- 
tained, and  there  would  be  a  failure  of 
j'-.stice  without  the  oath  of  the  party. 
Tliese  are  exceptions  to  the  rule, and  form 
a  rule  of  themselves.  In  some  cases,  tlie 
admission  of  the  party's  oath  is  in  aid  of 
the  trial ;  and  in  others,  it  bears  directly 
on  the  subject  in  controversy.  Thus  the 
oath  of  the  party  is  admitted  in  respect 
to  a  lost  deed,  or  otlier  paper,  preparatory 
to  the  offering  of  secondary  evidence  to 
prove  its  contents  ;  and  also  for  the  pur- 
pose of  procuring  a  continuance  of  a  suit, 
in  order  to  obtain  testimony  ;  and  for 
other  reasons.     So  the  oath  of  a  party  is 


admitted  to  prove  the  truth  of  entries  in 
his  book,  of  goods  delivered  in  small 
amounts,  or  of  daily  labor  performed, 
when  the  parties,  from  their  situation, 
have  no  evidence  but  their  accounts,  and 
from  the  nature  of  the  traffic  or  service, 
cannot  have,  as  a  general  thing.  So,  in 
complaints  under  the  bastardy  act,  where 
the  offence  is  secret,  but  yet  there  is  full 
proof  of  the  fact,  the  oath  of  the  woman 
is  admitted  to  charge  the  individual.  In 
cases,  also,  where  robberies  or  larcenies 
have  been  committed,  and  where  no  other 
evidence  existsbut  that  of  the  party  robbed 
or  plundered,  he  has  been  admitted  as  a 
witness  to  prove  his  loss;  as  it  is  said  the 
law  so  abhors  the  act  that  the  party  in- 
jured shall  have  an  extraordinary  remedy 
in  odium  upoliatoris.  Upon  this  principle, 
in  an  action  against  the  hundred,  under 
the  statute  of  Wintou,  the  person  robbed 
was  admitted  as  a  witness,  to  prove  his 
loss  and  the  amount  of  it.  Bull.  N.  P. 
187;  Hsp  on  Penal  Stats.  211;  1  Phil. 
Ev.  c.  5,  §  2 ;  2  Stark.  Evid.  681 ;  Porter 
V.  Hundred  of  Kegland,  Peake's  Add. 
Cas.  203.  So  in  equity,  where  a  man 
ran  away  with  a  casket  of  jewels,  the 
party  injured  was  admitted  as  a  witness. 
East  India  Co.  v.  Evans,  1  Vern.  308.  A 
case  has  also  been  decided  in  Maine,  Her- 
man V.  Drinkwater,  1  Greenl.  27,  where 
the  plaintiff  was  admitted  to  testif}'.  In 
that  case,  a  shipmaster  received  a  trunk 
of  goods  in  London,  belonging  to  the 
plaintiff,  to  be  carried  in  his  ship  to  New 
York,  and  on  board  which  the  j)laintitf 
had  engaged  his  passage.  The  master 
sailed,  designedly  leaving  the  plaintiff, 
and  proceeded  to  Portland  instead  of  New 
York.  He  there  broke  open  and  plun- 
dered tlie  trunk.  These  facts  were  found 
aliunde,  and  the  plaintiff  was  allowed  to 
testify  as  to  the  contents  of  the  trunk. 
Tiiese  cases  proceed  upon  the  criminal 
character  of  the  act,  and  are  limited  in 
their  nature.  The  present  case  does  not 
fall  within  the  principle.  Here  was  no 
robbery,  no  tortious  taking  away  by 
the  defendants,  no  fratul  committed.  It 
is  simjily  a  case  of  negligence  on  the  part 
of  carriers.  The  case  is  not  brought 
within  any  exception  to  the  common  rule, 
and  is  a  case  of  defective  proof  on  the 
part  of  the  plaintiff,  not  arising  from  ne- 
cessity, but  from  want  of  caution.  To 
admit  the  plaintiff's  oath,  in  cases  of  this 


CHAP,  n.] 


COMPETENCY  OF  WITNESSES. 


407 


bailor,  though  a  plaintiff,  has  been  admitted  a  competent  %vitnes3 
to  prove  the  contents  of  a  trunk,  lost  by  the  negligence  of  the 
bailee.!  Such  evidence  is  admitted  not  solely  on  the  ground  of 
the  just  odium  entertained,  both  in  equity  and  at  law,  against 
spoliation,  but  also  because,  from  the  necessity  of  the  case  and 


nature,  would  lead,  we  think,  to  much 
greater  mischiefs,  in  the  temptation  to 
frauds  and  perjuries,  than  can  arise  from 
excludinof  it.  If  the  party  about  to  travel 
places  valuable  articles  in  his  trunk,  he 
should  i)Ut  them  under  the  special  chary;e 
of  the  carrier,  witii  a  statement  of  what 
they  are,  and  of  their  value,  or  provide 
other  evidence,  beforehand,  of  the  articles 
taken  by  him.  If  he  omits  to  do  this,  he 
then  takes  the  chance  of  loss,  as  to  the 
value  of  the  articles,  and  is  guilty,  in  a 
degree,  of  negligence,  —  the  very  thing 
with  which  he  attempts  to  charge  the 
carrier.  Occasional  evils  only  have  oc- 
curred, from  such  losses,  through  failure 
of  proof;  the  relation  of  carriers  to  the 
party  being  such  that  the  losses  are  usu- 
ally adjusted  by  compromise.  And  there 
is  nothing  to  lead  us  to  innovate  on  the 
existing  rules  of  evidence.  No  new  case 
is  presented  ;  no  facts  which  have  not 
repeatedly  occurred  ;  no  new  combina- 
tion of  circumstances."  See  12  Met.  46, 
47.  [See  also  Wright  v.  Caldwell,  3 
Mich.  51.] 

1  Clark  V.  Spence,  10  Watts,  335; 
Story  on  Bailm.  §  454,  n.  (8d  ed.).  In  this 
case,  the  doctrine  in  the  text  was  more 
fully  expounded  by  Rogers,  J.,  in  tlie 
following  terms :  "  A  party  is  not  com- 
petent to  testify  in  his  own  cause ;  but, 
like  every  other  general  rule,  this  has  its 
exceptions.  Necessity,  either  physical 
or  moral,  dispenses  with  the  ordinary 
rules  of  evidence.  In  12  Vin.  24,  pi.  32, 
it  is  laid  down,  that  on  a  trial  at  Bodnyr, 
coram  Montague,  B.,  against  a  common 
carrier,  a  question  arose  about  the  things 
in  a  box,  and  he  declared  that  this  was 
one  of  those  cases  where  the  party  him- 
Belf  might  be  a  witness  ex  necessitate  rei. 
For  every  one  did  not  show  what  he  put 
in  bis  box.  The  same  principle  is  rec- 
ognized in  decisions  which  have  been  had 
on  the  statute  of  Hue-and-Cry  in  Eng- 
land, where  tiie  partj'  robbed  is  admitted 
as  a  witness  ex  necessitate.  Bull.  N.  P. 
181.  So,  in  Herman  v.  Drinkwater,  1 
Greenl.  27,  a  siiipmaster  having  received 
a  trunk  of  goods  on  board  his  vessel,  to 
be  carried  to  another  port,  which,  on  the 
passage,  he  broke  open  and  rifled  of  its 
contents  ;  the  owner  of  the  goods,  prov- 
ing the  delivery  of  the  trunk  and  its  vio- 


lation, was  admitted  as  a  witness  in  an 
action  for  the  goods,  against  the  ship- 
master, to  testify  to  the  particular  con- 
tents of  the  trunk,  there  being  no  other 
evidence  of  the  fact  to  be  obtained.  That 
a  party  then  can  be  admitted,  under  cer- 
tain circumstances,  to  prove  the  contents 
of  a  box  or  trunk,  must  be  admitted. 
But  while  we  acknowledge  the  exception, 
we  must  be  careful  not  to  extend  it  be- 
yond its  legitimate  limits.  It  is  admitted 
from  necessity,  and  perhaps  on  a  princi- 
ple of  convenience,  because,  as  is  said  in 
Vesey,  every  one  does  not  show  what  he 
puts  in  a  box.  This  applies  with  great 
force  to  wearing  apparel,  and  to  every 
article  which  is  necessary  or  convenient 
to  the  traveller,  which,  in  most  cases,  are 
packed  by  the  party  himself,  or  his  wife, 
and  wiiich,  therefore,  would  admit  of  no 
other  proof.  A  lady's  jewelry  would 
come  in  this  class ;  and  it  is  easier  to  con- 
ceive than  to  enumei'ate  other  articles, 
which  come  within  the  same  category. 
Nor  would  it  be  right  to  restrict  the  list 
of  articles,  which  may  be  so  proved, 
within  narrow  limits,  as  the  jury  will  be 
the  judges  of  the  credit  to  be  attached 
to  the  witness,  and  be  able,  in  most  cases, 
to  prevent  any  injury  to  the  defendant. 
It  would  seem  to  me  to  be  of  no  conse- 
quence, whether  the  article  was  sent  by 
a  carrier,  or  accompanied  the  traveller. 
The  case  of  Herman  v.  Drinkwater,  I 
would  remark,  was  decided  under  very 
aggravated  circumstances,  and  was  rightly 
ruled.  But  it  must  be  understood,  that 
such  proof  can  be  admitted,  merely  be- 
cause no  other  evidence  of  the  fact  can 
be  obtained.  For,  if  a  merchant,  sending 
goods  to  his  correspondent,  chooses  to  pack 
them  himself,  his  neglect  to  furnish  him- 
self with  the  ordinary  proof  is  no  reason 
for  dispensing  with  the  rule  of  evidence, 
which  requires  disinterested  testimony. 
It  is  not  of  the  usual  course  of  business  ; 
and  there  must  be  something  peculiar 
and  extraordinary  in  the  circumstances 
of  the  case,  which  would  justify  tlie 
court  in  admitting  the  oath  of  the  partj'." 
See  10  Watts,  336,  337.  See  also  ace. 
David  V.  Moore,  2  Watts  &  Serg.  230; 
Whitesell  v.  Crane,  8  Watts  &  Serg.  360 ; 
McGill  V.  Rowand,  3  Barr,  451 ;  County 
V.  Leidy,  10  Barr,  45. 


408  LAW   OF  EVIDENCE.  [rART  IH. 

the  nature  of  tlie  subject,  no  j)roof  can  otherwise  be  expected ;  it 
not  being  usual  even  for  the  most  prudent  persons,  in  sucli  cases, 
to  exhibit  the  contents  of  their  trunks  to  strangers,  or  to  provide 
other  evidence  of  their  value.  For,  where  the  law  can  have  no 
force  but  by  the  evidence  of  the  person  in  interest,  there  the  rules 
of  the  common  law,  respecting  evidence  in  general,  are  presumed 
to  be  laid  aside ;  or  rather,  the  subordinate  are  silenced  b}^  the 
most  transcendent  and  universal  rule,  that  in  all  cases  that  evi- 
dence is  good,  than  which  the  nature  of  the  subject  presumes  none 
better  to  be  attainable.^ 

§  349.  Same  subject.  Upon  the  same  necessity,  the  part}'  is 
admitted  in  divers  other  cases  to  prove  the  facts,  which,  from 
their  nature,  none  but  a  party  could  be  likely  to  know.  But  in 
such  cases,  a  foundation  must  first  be  laid  for  the  party's  oath,  by 
proving  the  other  facts  of  the  case  down  to  the  period  to  which 
the  party  is  to  speak.  As,  for  example,  if  a  deed  or  other  material 
instrument  of  evidence  is  lost,  it  must  first  be  proved,  as  we  shall 
hereafter  show,  that  such  a  document  existed ;  after  which  the 
party's  own  oath  may  be  received  to  the  fact  and  circumstances 
of  its  loss,  provided  it  was  lost  out  of  his  own  custody .^  To  this 
head  of  necessity  may  be  referred  the  admission  of  the  party 
robbed,  as  a  witness  for  himself,  in  an  action  against  the  hundred, 
upon  the  statute  of  Winton.^  So,  also,  in  questions  which  do 
not  involve  the  matter  in  controversy,  but  matter  which  is  aux- 
iliary to  the  trial,  and  which  in  their  nature  are  preliminary  to 

1  Gilb.  Evid.  by  Lofft,  pp.  244,  245;  ary  evidence  ;  that  there  is  no  distinction, 
supra,  §  82.  in  tiiis  respect,  between  cases  wliere  the 

2  Infra,  §  558;  Tayloe  v.  Tliggs,  1  Pe-  action  is  upon  the  instrument,  and  those 
ters,  5!)1,  596;  l^atterson  v.  Winn,  5  Te-  where  the  question  arises  indirectly;  and 
ters,  240,  242;  Riggs  v.  Taylor,!)  Wheat,  tliat  it  is  of  no  importance,  in  the  order 
486;  Taunton  Bank  v.  Richardson,  5  of  exhibiting  the  evi<lence,  wliicii  fact  is 
Pick.  4.%,  442  ;  Poignard  v.  Smith.  8  Piclc.  first  proved,  whetlier  tlie  fact  of  tiie  exist- 
278;  Page  i;.  Page,  15  Pick.  868,  374,  ence  and  contents  of  the  instrument,  or 
375;  Ciiamberlain  i\  Gorliani,  20  Jolins.  the  fact  of  its  destruction  or  loss.  Fitch 
144;  .Jackson  v.  Frier,  16  Johns.  l'.)3;  r.  Bogue,  lU  Conn.  285.  In  the  prosecu- 
Douglass  V.  Saunderson,  2  Dall.  116;  tions  for  bastardy,  whether  by  the  female 
8.  C  1  Yeates,  15;  Meeker  (.-.  Jackson,  3  herself,  or  by  the  town  or  parish  otiicers, 
Yeates,  442;  Blanton  ),'.  Miller,  1  Hayw.  she  is  competent  to  testify  to  facts  within 
4;  Seekrighty.  Bogan,  Id.  178,  n.  ;  Smiley  her  own  e.xchisive  knowledge,  though  in 
V.  Dewey,  17  Ohio,  156.  lu  Connecticut,  most  of  the  United  States  the  terms  of 
the  party  has  been  adjudged  incompe-  lier  ailmission  are  prescribed  by  stiitute. 
tent.  Coleman  v.  Wolcott,  4  Day,  388.  Drowne  y.  Siiup.son,  2  Mass.  441 ;  Judson 
But  this  decision  has  since  been  over-  v.  Blanchard,  4  Conn.  557  ;  Davis  v.  Sal- 
ruled ;  and  it  is  now  held,  tliat  a  party  to  isbury,  1  Day,  278;  Mariner  i'.  Dyer,  2 
the  suit  is  an  admissible  witness,  to  prove  Greenl.  172  ;  Anon.,  3  N.  H.  135  ;  Matlier 
to  the  court  tiiat  an  instrument,  which  it  v.  C^lark,  2  Aik.  20'J ;  The  State  v.  Coat- 
is  necessary  to  produce  at  the   trial,  is  ney,  8  Yerg.  210. 

destroyed  or  lost,  so  as  to  let  in  second-  ^  Bull.  N.  P.  187,  289. 


CHAP,  n.]  COMPETENCY   OF   WITNESSES.  409 

the  principal  subject  of  controversy,  and  are  addressed  to  the 
court,  the  oath  of  the  party  is  received. ^  Of  this  nature  is  his 
affidavit  of  the  materiality  of  a  witness  ;  of  diligent  search  made 
for  a  witness,  or  for  a  paper ;  of  his  inability  to  attend ;  of  the 
death  of  a  subscribing  witness ;  and  so  of  other  matters,  of  which 
the  books  of  practice  abound  in  examples. 

§  350.  Same  subject.  The  second  class  of  cases,  in  which  the 
oath  in  litem  is  admitted,  consists  of  those  in  which  public  neces- 
sity or  expediency  has  required  it.  Some  cases  of  this  class  have 
their  foundation  in  the  edict  of  the  Roman  Proetor;  "Nautse, 
caupones,  stabularii,  quod  cujusque  salvum  fore  receperint,  nisi 
restituent,  in  eos  judicium  dabo."^  Though  the  terms  of  Ihe 
edict  comprehended  only  shipmasters,  innkeepers,  and  stable- 
keepers,  yet  its  principle  has  been  held  to  extend  to  other  bailees, 
against  whom,  when  guilty  of  a  breach  of  the  trust  confided  to 
them,  damages  were  awarded  upon  the  oath  of  the  party  injured, 
per  modu7n  poenoe  to  the  defendant,  and  from  the  necessity  of  the 
case.^  But  the  common  law  has  not  admitted  the  oath  of  the 
party  upon  the  ground  of  the  Prastor's  edict ;  but  has  confined  its 
admission  strictly  to  those  cases  where,  from  their  nature,  no 
other  evidence  was  attainable.*  Thus,  in  cases  of  necessity, 
where  a  statute  can  receive  no  execution,  unless  the  party  inter- 
ested be  a  witness,  there  he  must  be  allowed  to  testify ;  for  the 
statute  must  not  be  rendered  ineffectual  by  the  impossibility  of 
proof.^ 

§  351.  Answer  in  equity.  Another  exception  is  allowed  in 
equity,  by  which  the  answer  of  the  defendant,  so  far  as  it  is 
strictly  responsive  to  the  bill,  is  admitted  as  evidence  in  his  favor 
as  well  as  against  him.  The  reason  is,  that  the  plaintiff,  by  ap- 
peahng  to  the  conscience  of  the  defendant,  admits  that  his  answer 

1  1  Peters,  596,  597,  per  Marshall,  Lower  Canada,  the  courts  are  bound  to 
C.J.  See  also  Anon.,  Cro.  Jac.  4'J9;  Cook  admit  the  decisory  oath  (serment  decisoire) 
V  Remington,  6  Mod.  237 ;  Ward  v.  Ap-  of  the  parties,  in  commercial  matters, 
price.  Id.  264;  Scoresby  v.  Sparrow,  2  whenever  either  of  them  shall  exact  it  of 
Stra.  1186;  Jevans  v.  Harridge,  1  Saund.  the  other.     Rev.  Stat.  1845,  p.  143. 

9  ;  Forbes  v.  Wale,  1   W.  Bl.  532 ;  s.  c.  *  Wager  of  law  is  hardly  an  exception 

1  Esp.  278  ;  Fortescue  and  Coake's  case,  to  this  rule  of  the  common  law,  since  it 

Godb.  193;  Anon.,  Godb.  326;  2  Stark,  was   ordinarily   allowed    only   in    cases 

Evid.   580,  n.    (2),  6th  Am.    ed. ;   infra,  where  the  transaction  was  one  of  per- 

§  558.  sonal  and  private  trust  and  confidence 

2  Dig.  lib.  4,  tit.  9,  1.  1.  between  the  parties.     See  3  Bl.  Conim. 
8  This  head  of  evidence  is  recognized  345,  346. 

in  the  courts  of  Scotland,  and  is  fully  ex-  5  The  United  States   v.  Murphy,  16 

plained  in  Tait  on  Evid.  pp.  28C  -287.    In     Peters,  203.     See  in/ni,  §  412. 


410  LAW  OF  EYTDEXCE.  [pae:!:  ni. 

is  worthy  of  credit,  as  to  the  matter  of  the  inquiry.  It  is  not 
conclusive  evidence ;  but  is  treated  like  the  testimony  of  any 
other  witness,  and  is  decisive  of  the  question  only  where  it  is  not 
outweighed  by  other  evidence.^ 

§  352.  Oath,  diverse  intuitu.  So  also  the  oath  of  the  party, 
taken  diverso  intuitu^  may  sometimes  be  admitted  at  law  in  his 
favor.  Thus,  in  considering  the  question  of  the  originality  of  an 
invention,  the  letters-patent  being  in  the  case,  the  oath  of  the 
inventor,  made  prior  to  the  issuing  of  the  letters-patent,  that  he 
was  the  true  and  first  inventor,  may  be  opposed  to  the  oath  of  a 
witness,  whose  testimony  is  offered  to  show  that  the  invention 
was  not  original.^  So,  upon  the  trial  of  an  action  for  malicious 
prosecution,  in  causing  the  plaintiff  to  be  indicted,  proof  of  the 
evidence  given  by  the  defendant  on  the  trial  of  the  indictment  is 
said  to  be  admissible  in  proof  of  probable  cause. ^  And,  generally, 
the  certificate  of  an  officer,  when  by  law  it  is  evidence  for  others, 
is  competent  evidence  for  himself,  if,  at  the  time  of  making  it,  he 
was  authorized  to  do  the  act  therein  certified.* 

§  353.  Party  not  compellable  to  testify.  The  rule  which  ex- 
cludes the  party  to  the  suit  from  being  admitted  as  a  witness  is 
also  a  rule  of  protection,  no  person  who  is  a  party  to  the  record 
being  compellable  to  testify.^  It  is  only  when  he  consents  to  be 
examined,  that  he  is  admissible  in  any  case ;  nor  then,  unless 
under  the  circumstances  presently  to  be  mentioned.  If  he  is 
only  a  nominal  party,  the  consent  of  the  real  part}^  in  interest 
must  be  obtained  before  he  can  be  examined.^     Nor  can  one  who 

1  2  Story  on  Eq.  Jur.  §  15-28  ;  Clnrk  v.  without  a  possibility  of  making  a  good 
Van  Reimsdyk,  9  Cranch,  IGO.  But  tiie  defence,  though  tlie  cause  of  prosecu- 
answer  of  an  infant  can  never  be  read     tion  were  never  so  pregnant." 

against  him  ;  nor  can  tliat  of  a/eme  rorer/,  *  McKnight  v.  Lewis,  5  Barb.  S.  C. 
answering  jointly  with  her'  husband.  181 ;  McCully  r.  Malcolm,  9  Humph.  187. 
Gresley  on  Evid.  p.  24.  An  arbitrator  So,  the  account  of  sales,  rendered  by  a 
has  no  right  to  admit  a  party  in  the  consignee,  may  be  evidence  for  some  pur- 
cause  as  a  witness,  unless  he  has  specific  poses,  in  his  favor,  against  the  consignor, 
authority  so  to  do.  Smith  v.  Sparrow,  Mertens  v.  Nottebohms,  4  Grant,  168. 
11  Jur.  120.  *  Hex  v.  Woburn,  10  East,  395  ;  Wor- 

2  Alden  v.  Dewey,  1  Story,  336 ;  8.  c.  rail  v.  Jones,  7  Bing.  395  ;  Fenn  v.  Gran- 
3  Law  Reporter,  383  ;  Pettibone  v.  Der-  ger,  3  Canipb.  177  ;  Mant  v.  Mainwaring, 
ringer,  4  Wash.  215.  8  Taunt.  139. 

"  Bull.  N.  P.  14;  Johnson  W.Browning,  <»  Frear  v.   Evertson,  20  Johns.   142. 

6  Mod.  216.     "For  other\vi.<e,"  said  Holt,  And  see  The  People  v.  Irving,  1  Wend. 

C.  J,  "  one  that  should.be  robbed,  &c..  20;  Commonwealth   v.   Marsh,  21   Pick, 

would  be  under  an  intolerable  mischief;  57,  per  Wilde,  J. ;  Columbia  Manuf  Co. 

for  if  he  prosecuted  for  such  robbery,  &c.,  r.  Dutch,  13  Pick.  125;  Bradlee  ?\  Neal, 

and  the  party  should  at  any  rate  be  ac-  lOPick.501.    In  Con))prtlriil,nn(\  Vermont, 

quitted,  the  proseciitor  would  be  liable  to  where  the  declarations  of  the  assignor  of 

an  action  for  a  malicious  prosecution,  a  chose  in  action  are  still  held  a<lmi8sible 


CHAP,  n.] 


COMPETENCY  OF   WITNESSES. 


411 


is  substantially  a  party  to  the  record  be  compelled  to  testify, 
though  he  be  not  nominally  a  party.^ 

§  354.  Co-plaintiffs  inadmissible  without  consent  of  the  others.  It 
has  been  said,  that  where  one  of  several  co-plaintiffs  voluntarily 
comes  forward  as  a  witness  for  the  adverse  party,  he  is  admissi- 
ble, without  or  even  against  the  consent  of  his  fellows ;  upon  thn 
ground,  that  he  is  testifying  against  liis  own  interest,  that  the 
privilege  of  exemption  is  personal  and  several,  and  not  mutual 
and  joint,  and  that  his  declarations  out  of  court  being  admissible, 
a  fortiori,  they  ought  to  be  received,  when  made  in  court  under 
oath.2  But  the  better  opinion  is,  and  so  it  has  been  resolved,^ 
that  such  a  rule  would  hold  out  to  parties  a  strong  temptation  to 
perjury  ;  that  it  is  not  supported  by  principle  or  authority,  and 
that  therefore  the  party  is  not  admissible,  without  the  consent  of 
all  parties  to  the  record,  for  that  the  privilege  is  mutual  and 
joint,  and  not  several.  It  may  also  be  observed,  that  the  declara- 
tions of  one  of  several  parties  are  not  always  admissible  against 
his  fellows,  and  that,  when  admitted,  they  are  often  susceptible 
of  explanation  or  contradiction,  where  testimony  under  oath 
could  not  be  resisted. 

§  355.  Effect  of  default,  nolle  prosequi,  sind  verdict.  Hitherto,  iu 
treating  of  the  admissibility  of  parties  to  the  record  as  witnesses, 
they  have  been  considered  as  still  retaining  their  original  situa- 


to  impeach  it  in  the  hands  of  the  as- 
signee, in  an  action  brought  in  the 
name  of  tlie  former  for  the  benefit  of 
tlie  latter,  tlie  defendant  is  permitted  to 
read  the  deposition  of  tiie  nominal  i)lain- 
tiff,  vohmtarily  given,  though  objected 
to  by  the  party  in  interest.  Woodruff  v. 
Westcott,  12  Conn.  134 ;  Johnson  v. 
Blackman,  11  Conn.  342;  Sargeant  v. 
Sargeant,  3  Wash.  371.     See  supra,  190. 

i  Mauran  v.  Lamb,  7  Cowen,  174  ;  Rex 
V.  Woburn,  10  East,  403,  per  Ld.  Ellen- 
borough.  In  several  of  the  United  States 
it  is  enacted  that  the  parties,  in  actions 
at  law,  as  well  as  in  equity,  may  inter- 
rogate each  other  as  witnesses.  See 
Massarhtiselis,  Stat.  18.52,  c.  312,  §§  61-75 ; 
New  York,  Code  of  Practice,  §§  344,  349, 
850 ;  Texds,  Hartley's  Dig.  arts.  735, 
739;  Califorma,  Rev.  Stat.  1850,  c.  142, 
§§  29G-3'03  [supra,  §  329  and  n.].  See 
vol.  iii.  §  317. 

2  Piiil.  &  Am.  on  Evid.  158;  1  Phil. 
Evid.  60.  The  cases  which  are  usually 
cited  to  support  this  opinion  are  Norden 
V.   Williamson,   1   Taunt.   377,  Fenn  v. 


Granger,  3  Carapb.  177,  and  Worrall  v. 
Jones,  7  Bing.  395.  But  in  the  first  of 
tliese  cases,  no  objection  appears  to  have 
been  made  on  behalf  of  the  other  co- 
plaintiff,  that  his  consent  was  necessary  ; 
but  the  decision  is  expressly  placed  on 
the  ground,  that  neither  party  objected 
at  the  time.  In  Fenn  v.  Granger,  Ld. 
EUenborough  would  have  rejected  the 
witness,  but  the  objection  was  waived. 
In  Worrall  v.  Jones,  the  naked  question 
was,  whether  a  defendant  who  has  suf- 
fered judgment  by  default,  and  has  no 
interest  in  the  event  of  the  suit,  is  admis- 
sible as  a  witness  for  the  plaintiff,  by  his 
own  consent,  where  "  the  only  objt-ction 
to  his  admissibility  is  this,  that  he  is 
party  to  the  record."  See  also  Willings 
V.  Consequa,  1  Peters,  C.  C  307,  per 
Washington,  J. ;  Paine  v.  Tilden,  3 
Washb.  554  [Wills  v.  Judd,  26  Vt.  617]. 

3  Scott  V.  Lloyd,  12  Peters,  149.  See 
also  2  Stark.  Evid.  580,  n.  (e) ;  Bridges 
V.  Armour,  5  How.  S.  C.  91 ;  Evans  v. 
Gibbs,  6  Humph.  405 ;  Sargeant  v.  Sar- 
geant, 3  Washb.  371. 


412  LAW   OF  EVIDENCE.  [PAllT  in. 

tion,  assumed  at  the  commencement  of  the  suit.  But  as  the 
situation  of  some  of  the  defendants,  where  there  are  several  in 
the  same  suit,  may  be  essentially  changed  in  the  course  of  its  prog- 
ress, by  default,  or  nolle  proseq^ii,  and  sometimes  by  verdict, 
their  case  deserves  a  distinct  consideration.  This  question  has 
arisen  in  cases  where  the  testimony  of  a  defendant,  thus  situated, 
is  material  to  the  defence  of  his  fellows.  And  here  the  general 
doctrine  :s,  that  where  the  suit  is  ended  as  to  one  of  several  de- 
fendants, and  he  has  no  direct  interest  in  its  event  as  to  the 
others,  he  is  a  competent  witness  for  them,  his  own  fate  being  at 
all  events  certain.^ 

§  356.  In  actions  of  contract.  In  actions  on  contracts,  the  opera- 
tion of  this  rule  was  formerly  excluded ;  for  the  contract  being 
laid  jointljs  the  judgment  by  default  against  one  of  several  de- 
fendants, it  was  thought,  would  operate  against  him,  only  in  the 
event  of  a  verdict  against  the  others ;  and  accordingly  he  has 
been  held  inadmissible  in  such  actions,  as  a  witness  in  their 
favor.2  On  a  similar  principle,  a  defendant  thus  situated  has 
been  held  not  a  competent  witness  for  the  plaintiff;  on  the  ground 
that,  by  suffering  judgment  by  default,  he  admitted  that  he  was 
liable  to  the  plaintiff's  demand,  and  was  therefore  directly  inter- 
ested in  throwing  part  of  that  burden  on  another  person.^  But 
in  another  case,  where  the  action  was  upon  a  bond,  and  the 
principal  suffered  judgment  by  default,  he  was  admitted  as  a  wit- 
ness for  the  plaintiff,  against  one  of  the  other  defendants,  his 
surety ;  though  here  the  point  submitted  to  the  court  was  nar- 
rowed to  the  mere  abstract  question,  whether  a  party  to  the 
record  was,  on  that  account  alone,  precluded  from  being  a  wit- 
ness, he  having  no  interest  in  the  event.*     But  the  whole  subject 

1  Tnfra,  §§  358-360,  303.  Graves,  2  Campb.  333,  334,  n.     See  ace. 

2  Mant  !•."  Mainvvarinj,',  8  Taunt.  139;  Supervisors  of  Chenango  v.  Birdsall,  4 
Brown  v.  Brown,  4  Taunt.  752;  Schcr-  Wend.  456,  457.  The  general  rule  is, 
merhorn  v.  Schermerhorn,  1  Wend.  110;  that  a  party  to  the  record  can,  in  no  case, 
Columbia  Man.  Co.  v.  Dutch.  13  Tick,  be  examined  as  a  witness;  a  rule  founded 
125;  Mills  y.  Lee,  4  Hill,  540  [Thornton  princiiially  on  tlie  policy  of  preventing 
f.  Blaisdell,  37  Maine,  lO'j  ;  King  v.  perjury,  and  the  hardship  of  cnlling  on  a 
Lowry,  20  Barb.  532].  party    to    charge    him.sclf.      Frazior    v. 

8  Green  v.  Sutton,  2  M.  &  Rob.  200.  Laughlin,  1  Gilm.  347;  FHnt  v.  AUyn,  12 
*  Worrall  /'.  Jones,  7  Ring  305.  See  Vt.  tUo;  Kennedy  i\  Niles,  2  Shepl.  54; 
Foxcroft  r.  Nevcns,  4  Greenl.  72,  cmitm.  Stone  v.  Bibb,  2  Ala.  100.  Ami  this  rule 
In  a  case  before  I.e  lUanc,  J.,  lie  refused  is  strictly  enforced  against  plaintifis,  be- 
to  permit  one  defendant,  who  had  suffered  cause  the  joining  of  so  many  defendants 
judgment  to  go  by  default,  to  be  calleil  by  is  generally  their  own  act,  though  some- 
the  i)laintirf  to  inculpate  the  others,  even  times  it  is  a  matter  of  necessity.  2 
in  an  action  of  trespass.      Chapman  v.  Stark.    Evid.   681,  n.    (a) ;    Blackett    v. 


CHAP,  n.] 


COMPETENCY  OF    WITNESSES. 


413 


has  more  recently  been  reviewed  in  England,  and  the  rule  estab- 
lished, that  where  one  of  two  joint  defendants  in  an  action  ou 
contract  has  suffered  judgment  by  default,  he  may,  if  not  other- 
wise interested  in  procuring  a  verdict  for  the  plaintiff,  be  called  by 
him  as  a  witness  against  the  other  defendant.^  So,  if  the  defence^ 
in  an  action  ex  co7itractu  against  several,  goes  merely  to  the 
personal  discharge  of  the  party  pleading  it,  and  not  to  that  of 
the  others,  and  the  plaintiff  thereupon  enters  a  nolle  prosequi  as 
to  him,  which  in  such  cases  he  may  well  do,  such  defendant  is  no 
longer  a  party  upon  the  record,  and  is  therefore  competent  as  a 
witness,  if  not  otherwise  disqualified.  Thus,  where  the  plea  by 
one  of  several  defendants  is  bankruptcy ,2  or,  that  he  was  never 
executor,  or,  as  it  seems  by  the  later  and  better  opinions,  infancy 
or  coverture,^  the  plaintiff  may  enter  a  nolle  prosequi  as  to  such 
party,  who,  being  thus  disengaged  from  the  record,  may  be  called 
as  a  witness,  the  suit  still  proceeding  against  the  others.^  The 
mere  pleading  of  the  bankruptcy,  or  other  matter  of  personal  dis- 
charge, is  not  alone  sufficient  to  render  the  party  a  competent 
witness  ;  and  it  has  been  held,  that  he  is  not  entitled  to  a  previ- 
ous verdict  upon  that  plea,  for  the  purpose  of  testifying  for  the 
others.^ 


Weir,  5  B.  &  C.  387 ;  Barrett  v.  Gore,  3 
Atk.  401 ;  Bull.  N.  P.  285 ;  Cas.  temp. 
Hardw.  163. 

1  Pipe  V.  Steel,  2  Ad.  &  El.  n.  s.  733; 
Cupper  V.  Newark,  2  C.  &  K.  24.  Thus, 
he  has  been  admitted,  with  his  own  con- 
sent, as  a  witness  to  prove  that  he  is  the 
principal  debtor,  and  that  the  signatures 
of  the  other  defendants,  who  are  liis  sure- 
ties, are  genuine.  Mevey  v.  Matthews,  9 
Barr,  112.  But  generally  he  is  interested ; 
either  to  defeat  the  action  against  both,  or 
to  throw  on  the  other  defendant  a  portion 
of  the  demand,  or  to  reduce  tlie  amount 
to  be  recovered.  Bowman  v.  Noyes,  12 
N.  H.  302  ;  George  v.  Sargeant,  Id.  313; 
Vinal  V.  Burrill,  18  Pick.  29;  Bull  v. 
Strong,  8  Met.  8 ;  Walton  v.  Tomlin,  1 
Ired.  593;  Turner  v.  Lazarus,  6  Ala.  875 
[Manchester  Bank  v.  Moore,  19  N.  H.  564 ; 
Kincaid  v.  Purcell,  1  Carter,  324]. 

2  Noke  I'.  Ingham,  1  Wils.  89;  1  Tidd's 
Pr.  602 ;  1  Saund.  207  a.  But  see  Mills 
V.  Lee,  4  Hill,  549. 

8  1  Paine  &  Duer's  Pr.  642,  643; 
Woodward  v.  Newhall,  1  Pick.  500;  Hart- 
ness  V.  Thompson,  5  Johns.  160 ;  Pell  v. 
Pell,  20  Johns.  126 ;  Burgess  v.  Merrill, 
4  Taunt.  468.    The  ground  is,  that  these 


pleas  are  not  in  bar  of  the  entire  action, 
but  only  in  bar  as  to  the  party  pleading; 
and  thus  the  case  is  brought  within  the 
general  principle,  that  wliere  the  plea 
goes  only  to  the  personal  discharge  of 
the  party  pleading  it,  the  plaintiff  may 
enter  a  ??o//e  prosequi.  1  Pick.  501,  502. 
See  also  Minor  v.  The  Mechanics'  Bank 
of  Ale.xandria,  1  Peters,  74.  So,  if  the 
cau.se  is  otherwise  adjudicated  in  favor 
of  one  of  the  defendants,  upon  a  plea 
personal  to  himself,  whether  it  be  hy  the 
common  law,  or  by  virtue  of  a  statute 
authorizing  a  separate  finding  in  favor 
of  one  defendant,  in  an  action  upon  a 
joint  contract,  the  result  is  the  same. 
Blake  v.  Ladd,  10  N.  H.  190;  Essex  Bank 
V.  Rix,  Id.  201 ;  Brooks  v.  M'Kenney,  4 
Scam.  309.  And  see  Campbell  v.  Hood, 
6  Mo.  211. 

*  Mclver  v.  Humble,  16  East,  171,  per 
Le  Blanc,  J.,  cited  7  Taunt.  607,  per 
Park,  J. ;  Moodv  v.  King,  2  B.  &  C.  558 ; 
Aflalo  V.  Fourdrinier,  6  Bing.  306.  But 
see  Irwin  v.  Shumaker,  4  Barr,  199. 

6  Haven  v.  Dunning,  3  Esp.  25 ;  Em- 
mett  V.  Butler,  7  Taunt.  599;  s.  c.  1 
Moore,  332 ;  Schermerhorn  v  Schermer- 
horn,  1  Wend.  119.    But  in  a  later  case. 


414 


LAW   OF  EVIDENCE. 


[part  m. 


§  357.  In  actions  of  tort.  In  actions  on  torts,  these  being  in 
their  nature  and  legal  consequences  several,  as  well  as  ordinarily 
joint,  and  there  being  no  contribution  among  wrong-doers,  it  has 
not  been  deemed  necessary  to  exclude  a  material  witness  for  the 
defendants,  merely  because  the  plaintiff  has  joined  him  with  them 
in  the  suit,  if  the  suit,  as  to  him,  is  already  determined,  and  he 
has  no  longer  any  legal  interest  in  the  event.^  Accordingly,  a 
defendant  in  an  action  for  a  tort,  who  has  suffered  judgment  to 
go  by  default,  has  uniformly  been  held  admissible  as  a  witness 
for  his  co-defendants.2  Whether,  being  admitted  as  a  witness,  he 
is  competent  to  testify  to  the  amount  of  damages,  which  are 
generally  assessed  entire  against  all  who  are  found  guilty,^  may 
well  be  doubted.*  And  indeed  the  rule,  admitting  a  defendant 
as  witness  for  his  fellows  in  any  case,  must,  as  it  should  seem,  be 
limited  strictly  to  the  case  where  his  testimony  cannot  directly 
make  for  himself ;  for  if  the  plea  set  up  by  the  other  defendants 
is  of  such  a  nature,  as  to  show  that  the  plaintiff  has  no  cause  of 


since  the  49  G.  III.  c.  121,  Park,  J.,  per- 
mitted a  verdict  to  be  returned  upon  tlie 
plea,  in  order  to  admit  the  witness.  Bate 
V.  Russell,  1  Mood.  &  M.  332.  Where,  by 
statute,  the  plaintiff,  in  an  action  on  a 
parol  contract  against  several,  may  have 
judgment  against  one  or  more  of  the  de- 
fendants, according  to  his  proof,  tliere  it 
has  been  held,  that  a  defendant  who  has 
been  defaulted  is,  with  liis  consent,  a  com- 
petent witness  in  favor  of  his  co-defend- 
ants. Bradlee  v.  Ncal,  16  Pick.  501.  But 
this  has  since  been  questioned,  on  the 
ground  that  his  interest  is  to  reduce  the 
demand  of  the  plaintiff  against  the  others 
to  nominal  damages,  in  order  that  no 
greater  damages  may  be  assessed  against 
him  upon  Ids  default.  Vinal  v.  Burrill, 
18  Pick.  29.  [Vinal  v.  Burrill  is  distin- 
guished from  Bradlee  v.  Neal,  by  Shaw, 
C.  J.,  in  Gerrisli  v.  Curamings,  4  Gush. 
892.] 

1  As,  if  one  has  been  separately  tried 
and  acquitted.  Carpenter  v.  Crane,  6 
Black,  119. 

2  Ward  V.  Haydon,  2  Esp.  552,  ap- 
proved in  Hawkesworth  v.  Showier,  12 
M.  &  W.  48;  Chapman  v.  Graves,  2 
Campb.  o34,  per  Le  lilanc,  J.;  Common- 
wealth V.  Marsh,  10  Pick.  57,  58.  A  de- 
fendant, in  such  case,  is  also  a  competent 
■witness  for  tiie  plaintiff.  Hadrick  v.  Hcs- 
lop,  12  Jur.  GOO;  17  Law  Journ.  x.  8.  313; 
12  Ad.  &  El.  N.  s.  200.  The  wife  of  one 
joint  trespasser  is  not  admissible  as  a 
witness  for  the  other,  though  the  case  is 


already  fully  proved  against  her  husband, 
if  he  is  still  a  party  to  the  record. 
Hawkesworth  i:  Showier,  12  M.  &  W.  45. 

3  2  Tidd's  Pr.  896. 

*  In  .Alash  v.  Smith,  1  C.  &  P.  577, 
Best,  C.  J.,  was  of  opinion,  that  the  wit- 
ness ought  not  to  be  admitted  at  all,  on 
the  ground  that  his  evidence  might  give 
a  different  complexion  to  the  case,  and 
tlius  go  to  reduce  the  damages  ag.iinst 
himself;  but  on  the  authority  of  Ward 
V.  Haydon,  and  Ciiapman  v.  Graves,  he 
thought  it  best  to  receive  the  witness, 
giving  leave  to  the  opposing  party  to 
move  for  a  new  trial.  But  tlie  point  was 
not  moved;  and  the  report  does  not  show 
which  way  was  tlie  verdict.  It  has,  how- 
ever, more  recently  l^een  licld  in  l^ngland, 
that  a  defendant  in  trespass,  who  has  suf- 
fered judgment  by  default,  is  not  a  com- 
petent witness  for  his  co-defendant,  where 
the  jury  are  summoned  as  well  to  try  the 
issue  against  the  one,  as  to  assess  damages 
against  the  other.  Thorpe  c.  Barber,  5 
M.  G.  &  Sc.  675;  17  Law  Journ.  n  s.  113. 
And  see  Ballard  v.  Noaks,  2  Pike,  45. 
[Where  one  of  two  defendants  in  an  a(;tion 
of  trover  is  defaulted,  he  is  not  a  compe- 
tent witness  on  the  trial  for  the  other,  on 
the  ground  of  interest,  even  tiiougli  called 
to  testify  to  matters  not  connected  with 
the  question  of  damages;  because,  if  ad- 
missible at  all,  he  is  liable  to  be  examined 
upon  all  matters  pertinent  to  the  issue  on 
trial.  Gcrrish  v.  Cummings,  4  Cush.  39l; 
Chase  v.  Lovering,  7  Foster,  295.] 


CHAP,  n.]  COMPETENCY  OF  WITNESSES.  415 

action  against  any  of  the  defendants  in  the  suit,  the  one  who 
suffers  judgment  by  default  will  be  entitled  to  the  benefit  of  the 
defence,  if  established,  and  therefore  is  as  directly  interested  as 
if  the  action  were  upon  a  joint  contract.  It  is,  therefore,  only 
where  the  plea  operates  solely  in  discharge  of  the  party  pleading 
it,  that  another  defendant,  who  has  suffered  judgment  to  go  by 
default,  is  admissible  as  a  witness.^ 

§  358.  Misjoinder  of  parties.  If  the  person  who  is  a  material 
witness  for  the  defendants  has  been  improperly  joined  with  them 
in  the  suit,  for  the  purpose  of  excluding  his  testimony,  the  jury 
will  be  directed  to  find  a  separate  verdict  in  his  favor  ;  in  which 
case,  the  cause  being  at  an  end  with  respect  to  him,  he  may  be 
admitted  a  witness  for  the  other  defendants.  But  this  can  be 
allowed  only  where  there  is  no  evidence  whatever  against  him, 
for  then  only  does  it  appear  that  he  was  improperly  joined 
through  the  artifice  and  fraud  of  the  plaintiff.  But  if  there  be 
any  evidence  against  him,  though,  in  the  judge's  opinion,  not 
enough  for  his  conviction,  he  cannot  be  admitted  as  a  witness  for 
his  fellows,  because  his  guilt  or  innocence  must  wait  the  event  of 
the  verdict,  the  jury  being  the  sole  judges  of  the  fact.^  In  what 
stage  of  the  cause  the  party,  thus  improperly  joined,  might  be 
acquitted,  and  whether  before  the  close  of  the  case  on  the  part 
of  the  other  defendants,  was  formerly  uncertain  ;  but  it  is  now 
settled,  that  the  application  to  a  judge,  in  the  course  of  a  cause,  to 
direct  a  verdict  for  one  or  more  of  several  defendants  in  trespass, 
is  strictly  to  his  discretion ;  and  that  discretion  is  to  be  regulated, 
not  merely  by  the  fact  that,  at  the  close  of  the  plaintiff's  case,  no 
evidence  appears  to  affect  them,  but  by  the  probabilities  whether 
any  such  will  arise  before  the  whole  evidence  in  the  cause  closes.^ 
The  ordinary  course,  therefore,  is  to  let  the  cause  go  on  to  the 
end  of  the  evidence.*  But  if,  at  the  close  of  the  plaintiff's  case, 
there  is  one  defendant  against  whom  no  evidence  has  been  given, 
and  none  is  anticipated  with  any  probability,  he  instantly  will  bo 

1  2  TicM's  Pr.  895;  Brings  v.  Green-  "Watts  &  Serg.  334  [Castle  v.  BuUard,  23 
field  et  al.,  1  Str.  610;  8  Mod.  217;  s.  c.     How.  173]. 

2  Ld.  Raym.  1:372  ;  Pliil.  &  Am.  on  Evid.  ^  Sowell  v.  Champion,  6  Ad.  &  El.  407 

53,  n.  (3)  ;  1  Phil.  Evid.  52,  n.  (1) ;  Bow-  White  v.  Hill,  6  Ad.  &  El.  n.  s.  487,  491 

man  v.  Noyes,  12  N.  H.  302.  Commonwealth  v.  Eastman,  1  Cush.  189 

2  1  Gill).  Evid.  by  Lofft,  p.  250;  Brown  Over  v.  Blackstone,  8  Watts  &  Serg.  71 
».  Howard,  14  Johns.  119,  122;  Van  Deu-  Prettyman   v.   Dean,   2    Harringt.   494 
sen  V.  Van  Slvck,  15  Johns.  223.     The  Brown  v.  Burnes,  8  Mo.  26. 
admission   of   the  witness,  in  all  these  *  6  Ad.  &  El.  n.  s.  491,  per  Ld.  Den- 
cases,  seems  to  rest  in  the  discretion  of  man. 

the  judge.     Brotherton  v.  Livingston,  3 


416 


LAW   OF   EVIDElJTCE. 


[PAHT  ni. 


acquitted.^  The  mere  fact  of  mentioning  tlie  party  in  the  simul 
cum,  in  the  declaration,  does  not  render  him  incompetent  as  a 
■witness  ;  but,  if  the  plaintiff  can  prove  the  person  so  named  to 
be  guilty  of  the  trespass,  and  party  to  the  suit,  which  must  be 
by  producing  the  original  process  against  him,  and  proving  an 
ineffectual  endeavor  to  arrest  him,  or  that  the  process  was  lost, 
the  defendant  shall  not  have  the  benefit  of  his  testimony .^ 

§  359.  "Witness  made  party  by  mistake.  If  the  plaintiff,  in  tres- 
pass, has  h^  mistake  made  one  of  his  own  intended  witnesses  a 
defendant,  the  court  will,  on  motion,  give  leave  to  omit  him,  and 
have  his  name  stricken  from  the  record,  even  after  issue  joined.^ 
In  criminal  informations  the  same  object  is  attained  by  entering 
a  7ioUe  jjrosequi  as  to  the  party  intended  to  be  examined  ;  the 
rule  that  a  plaintiff  can  in  no  case  examine  a  defendant  being 
enforced  in  criminal  as  well  as  in  civil  cases.* 


1  ChiUl  V.  Chamberlain,  6  C.  &  P.  213. 
It  is  not  easy  to  perceive  why  the  same 
principle  should  not  be  applied  to  actions 
upon  contract,  where  one  of  the  defend- 
ants pleads  a  matter  in  his  own  personal 
discharge,  such  as  infancy  or  bankruptcy, 
and  estabHshes  his  plea  by  a  certificate,  or 
other  affirmative  proof,  wliichtlie  plaintiff 
does  not  pretend  to  gainsay  or  resist.  See 
Bate  V.  Russell,  1  Mood.  &  M.  332.  Upon 
Emmett  v.  Butler,  7  Taunt.  599,  where  it 
■was  not  allowed,  Mr.  riiillips  very  justly 
observes,  that  tiie  plea  was  not  the  com- 
mon one  of  bankruptcy  and  certificate  ; 
but  that  the  plaintiffs  had  proved  (under 
the  commission),  and  thereby  made  their 
election  ;  and  that  where  a  plea  is  special, 
and  involves  the  consideration  of  many 
facts,  it  is  obvious  that  there  would  be 
much  inconvenience  in  splitting  tlie  case, 
and  taking  sei>arate  verdicts;  but  there 
seems  to  be  no  such  inconvenience  wliere 
the  wliole  jiroof  consists  of  the  bank- 
rupt's certificate,  riiil.  &  Am.  on  Evid. 
p.  2'J,  n.  (3)  [Beaslcy  v.  Bradley,  2  Swan, 
180;  Cochran  c.  Annnon,  16  111.  310]. 

•■i  Bull.  N.  P.  280;  1  Gilb.  Evid.  by 
Lofft,  p.  2-31  ;  Lloyd  v.  Williams,  Cas. 
temp.  I  lard  w.  123;  Cotton  v.  Luttrell,  1 
Atk.  4')2.  "  Tiiese  cases  apj)ear  to  liavo 
proceeded  upon  the  ground,  that  a  co- 
trespasser,  who  had  originally  been  made 
a  party  to  the  suit  ui)on  sufficient  groumls, 
ought  not  to  come  forward  as  a  witness  to 
defeat  tlu-plaintitf,  afterhe  had  prevented 
the  pl.iintiff  from  ])roceeding  etlectually 
against  him,  by  his  own  wrongful  act  in 
eluding  the  process."  Phil.  &  Am.  on 
Ev.  p.  60,  n.  (2J.     But  see  Stockhara  u. 


Jones,  10  Johns.  21,  contra.  See  also  1 
Stark.  Evid.  132.  In  Wakeley  ;;.  Hart,  6 
Binn.  310,  all  the  defendants,  in  trespass, 
were  arrested,  but  the  plaintiff  went  to 
issue  with  some  of  them  only,  and  did  not 
rule  the  others  to  plead,  nor  take  judg- 
ment against  them  by  default ;  and  they 
were  held  competent  witnesses  for  the 
other  defendants.  The  learned  Chief  Jus- 
tice placed  the  decision  partly  upon  the 
general  ground,  that  they  were  not  inter- 
ested in  the  event  of  the  suit ;  citing  and 
approving  the  case  of  Stockham  v.  Jones, 
supra.  But  he  also  laid  equal  stress  upon 
the  fact,  that  the  plaintiff"miglit  have  con- 
ducted his  cause  so  as  to  have  excluded 
the  witnesses,  by  laying  them  under  a  rule 
to  plead,  and  taking  judgment  by  default. 
In  Pnrviance  v.  Dryden,  3  S.  &  11.  402, 
and  Gibbs  i;.  Bryant,  1  Pick.  118,  both  of 
which  were  actions  upon  contract,  where 
the  process  was  not  served  as  to  one  of  the 
persons  named  as  defendant  with  the 
other,  it  was  held,  that  he  was  not  a 
party  to  the  record,  not  being  served  with 
process,  and  so  was  not  incompetent  as 
a  witness  on  that  account.  Neither  of 
these  cases,  therefore,  except  that  of 
Stockham  v.  Jones,  touches  the  ground 
of  public  policy  for  the  prevention  of 
fraud  in  cases  of  tort,  on  which  the  rule 
in  the  text  seems  to  have  been  founded. 
Idea  (jiutrfi.  See  also  Curtis  v.  Graham, 
12  Mart.  289;  lleckert  i-.  Fegely,  6  Watts 
&  Serg.  333. 

3  Bull.  N.  P.  285;  Berrington  d.  Dor- 
mer V.  Fortescue,  Cas.  temp.  Ilardw.  102, 
163. 

•1  Ibid. 


CHAP.  U.]  COMPETENCY   OF   WITNESSES.  417 

§  360.  Same  subject.  If  a  material  witness  for  a  defendant  in 
ejectment  be  also  made  a  defendant,  he  may  let  judgment  go  by 
default,  and  be  admitted  as  a  witness  for  the  other  defendant. 
But  if  he  plead,  thereby  admitting  himself  tenant  in  possession, 
the  court  will  not  afterwards,  upon  motion,  strike  out  his  name.^ 
But  where  he  is  in  possession  of  only  a  part  of  the  premises,  and 
consents  to  the  return  of  a  verdict  against  him  for  as  much  aa 
he  is  proved  to  have  in  possession,  Mr.  Justice  Duller  said,  he 
could  see  no  reason  why  he  should  not  be  a  witness  for  another 
defendant.^ 

§  361.  In  equity.  In  chancery,  parties  to  the  record  are  subject 
to  examination  as  witnesses  much  more  freely  than  at  law.  A 
plaintiff  may  obtain  an  order,  as  of  course,  to  examine  a  defend- 
ant, and  a  defendant  a  co-defendant,  as  a  witness,  upon  affidavit 
that  he  is  a  material  witness,  and  is  not  interested  on  the  side  of 
the  applicant,  in  the  matter  to  which  it  is  proposed  to  examine 
him,  the  order  being  made  subject  to  all  just  exceptions.^  And 
it  may  be  obtained  ex  parte,  as  well  after  as  before  decree.*  If 
the  answer  of  the  defendant  has  been  replied  to,  the  replication 
must  be  withdrawn  before  the  plaintiff  can  examine  him.  But  a 
plaintiff  cannot  be  examined  by  a  defendant,  except  by  consent, 
unless  he  is  merely  a  trustee,  or  has  no  beneficial  interest  in  the 
matter  in  question.^     Nor  can  a  co-plaintiff  be  examined  by  a 

1  Bull.  N.  P.  285  ;  Berrington  d.  Dor-  though  taken  in  behalf  of  a  co-defendant, 
mer  v.  Fortescue,  Gas.  temp.  Hardw.  162,  is  held  inadmissible.  Clark  v.  Wyburn, 
1Q3_  12  Jur.  613.     It  has  been  held  in  Mas.^a- 

2  Bull.  N.  P.  286.  But  where  the  same  chnx'^tts,  that  the  answer  of  one  defendant, 
jury  are  also  to  assess  damages  against  so  far  as  it  is  responsive  to  the  bill,  may 
the  witness  it  seems  lie  is  not  admissible,  be  read  by  another  defendant,  as  evidence 
See  Mash  !>'.  Smith,  1  C.  &  P.  577;  supra,  in  his  own  favor.  Mills  v.  Gore,  20  Pick. 
§  356.    [Where  the  court  in  its  discretion  28. 

orders  several  actions,  depending  on  the  *  Steed  v.  Oliver,  11  Jur.  .365  ;  Paris  v. 

same  evidence,  to  be  tried  together,  the  Hughes,  1  Keen,  I ;  Van  v.  Corpe,  3  My. 

testimony  of  a  witness  who  is  competent  &  K.  269. 

in  one  ofthe  actions  is  not  to  be  excluded  ^  The  reason  of   this   rule  has  often 

because  it  is  inadmissible  in  the  others,  been  called  in  question;  and  the  opini.m 

and  may  possibly  have  some  effect  on  tlie  of  many  of  the  profession  is  inclined  in 

decision  of  them;  and  the  jury  should  be  favor  of  making  the  right  of  examina- 

directed  to  confine  the  testimony  of  the  tion  of  parties  in  equity  reciprocal,  with- 

witness  to  the  case  in  which  he  is  compe-  out  the  intervention  of  a  cross-bill.     See 

tent.    Kimball  v.  Thompson,  4  Gush.  411.  I  Smith's  Ch.  Pr.  459,  n.  (1) ;  Report  on 

See  also  Reeves  v.  Matthews,    17   Geo.  Chancery  Practice,  App.  p.  153,  Q.  49. 

449.]  Sir  Samuel  Romilly  was  in  favor  of  such 

3  2  Daniel's  Chan.  Pr.  10.35,  n.  (Per-  change  in  the  practice.  Id.  p.  54,  Q.  266; 
kins's  ed.) ;  Id.  1043;  Ashton  v.  Parker,  1  HoJEEman's  Cii.  Pr.  345.  In  some  ofthe 
14  Sim.  682.  But  where  there  are  several  United  States,  this  has  already  been 
defendants,  one  of  whom  alone  has  an  in-  done  by  statute.  See  New  Yorh,  Code  of 
terest  in  defeatingthe  plaintiff's  claim, the  Practice,  §§  390,  a95,  396  (Blatchford's 
evidence  of  the  defendant  so  interested,  ed.) ;  Ohio,  Rev.  Stat.  1841,  c.  87,  §  26; 

VOL.  I.  27 


418  LAW   OF  EVIDENCE.  [PAET  ni. 

plaintiff  without  the  consent  of  the  defendant.  The  course  in 
the  latter  of  such  cases  is,  to  strike  out  his  name  as  plaintiff,  and 
make  him  a  defendant ;  and,  in  the  former,  to  file  a  cross-bill.i 

§  362.  Rule  in  civil  and  criminal  cases  the  same.  The  principles 
which  govern  in  the  admission  or  exclusion  of  parties  as  witnesses 
in  civil  cases  are  in  general  applicable,  with  the  like  force,  to  crim- 
inal 2:>rosecutions,  except  so  far  as  they  are  affected  by  particular 
legislation,  or  by  considerations  of  public  policy.  In  these  (lases, 
the  State  is  the  party  prosecuting,  though  the  process  is  usually, 
and  in  some  cases  always,  set  in  motion  by  a  private  individual, 
commonly  styled  the  prosecutor.  In  general,  this  individual  has 
no  direct  and  certain  interest  in  the  event  of  the  prosecution ; 
and  therefore  he  is  an  admissible  witness.  Formerly,  indeed,  it 
was  supposed  that  he  was  incompetent,  by  reason  of  an  indirect 
interest  arising  from  the  use  of  the  record  of  conviction  as  evi- 
dence in  his  favor  in  a  civil  suit ;  and  this  opinion  was  retained 
down  to  a  late  period  as  applicable  to  cases  of  forgery,  and  espe- 
cially to  indictments  for  perjury.  But  it  is  now  well  settled,  as 
will  hereafter  more  particularly  be  shown,^  that  the  record  in  a 
criminal  prosecution  cannot  be  used  as  evidence  in  a  civil  suit, 
either  at  law  or  in  equity,  except  to  prove  the  mere  fact  of  the 
adjudication,  or  a  judicial  confession  of  guilt  by  the  party  indicted.^ 
The  prosecutor,  therefore,  is  not  incompetent  on  the  ground  that 
he  is  a  party  to  the  record  ;  but  whether  any  interest  which  he 
may  have  in  the  conviction  of  the  offender  is  sufficient  to  render 
him  incompetent  to  testify  will  be  considered  more  appropriately 
under  the  head  of  incompetency  from  interest.^ 

Missouri,  Rev.  Stat.  1845,  c.  137,  art.  2,  son  v.  Williams,  12  Mod.  319;   Reg.  v. 

88  14    15;  New  Jersey,  Rev.  Stat.  1846,  Moreau,  oH  Leg.  Obs.  69;  11  Ad.  &  El. 

tit.  23,  c.  1,  §  40;  Texas,   Hartley's  Dig.  1028;  infra,  §  537.    The  exception  which 

arts.  735,  739;  Wisconsin,  Rev.  Stat.  1840,  had  grown  up  in  the  case  of  forgery  was 

c.  84,  §  30 ;  California,  Rev.  Stat.  1850,  admitted  to  be  an  anomaly  in  the  law,  in 

c   14"'  l§  200-303.  4  East,  582,  per  Lord  EUenborough,  and 

»  l'  Smith's  Ch.  Pr.  343,  344  ;  1   Iloff-  in  4  B.  &  Aid.  210,  per  Abbott,  C.  J.;  and 

man's    Ch.   Pr.   485-488.       See   furtiier,  was  finally  removed  by  tlie  declaratory 

Gresley  on  Evid.  242-244;  2  Mad.  Chan,  act,  for  such  in  effect  it  cerlainly  is,  of  9 

415,410;  Neil.^on  r.  McDonald,  6  Johns.  Geo.  IV.  c.  32,  §  2.      In   this  country, 

Ch.  201 ;  Souverbve  !•.  Arden,  1  Johns,  with  the  exception  of  a  few  early  cases, 

Ch.  240;   2   Daniel's    Ch.    Pr.  455,  450;  the  party  to  the  forged  instrument  lias 

Piddock  V.  Brown,  3  P.  W.  288  ;  Murray  been  held  admissible  as  a  witness,  on  the 

t;.  Shadwell,  2  V.  &  B.  401 ;  Hoffm.  Mas-  general  principles  of  the  criminal  law. 

ter  in  Chanc.  18,  19;  Cotton  v.  Luttrell,  See  Commonwealth  (•.  Snell,  3  Mass.  82; 

1  Atk  451.  The  People  c.  Dean,  0  Cowen,  27;  Furber 

■J  /„/•,«§  537.  V.  Hilliard.  2  N.  II.  480;  Ik'spublica  v. 

8  Rex  i;.  Boston,  4  East,  672;  Bartlctt  Ross,  2  Dall.  239;  The  State  v.  Foster,  3 

V.  Pickersgill,  Id.  577,  n.;  Gibson  v.  Mc-  McCord,  442. 

Carty,  Cas.  temp.  Uardw.  311;  Richard-  *  Infra,  §§  412-414. 


CHAP,  n.]  COMPETENCY   OF   WITNESSES.  419 

§  363.  Defendants  in  criminal  cases.  In  regard  to  defendants  in 
criminal  cases,  if  the  State  would  call  one  of  them  as  a  witness 
against  others  in  the  same  indictment,  this  can  be  done  only  by 
discharging  him  from  the  record ;  as,  by  the  entry  of  a  nolle  prose- 
qui ;  ^  or,  by  an  order  for  his  dismissal  and  discharge,  where  he 
has  pleaded  in  abatement  as  to  his  own  person,  and  the  plea  is 
not  answered  ;  ^  or,  by  a  verdict  of  acquittal,  where  no  evidence, 
or  not  sufficient  evidence,  has  been  adduced  against  him.  In  the 
former  case,  where  there  is  no  proof,  he  is  entitled  to  the  verdict ; 
and  it  may  also  be  rendered  at  the  request  of  the  other  defend- 
ants, who  may  then  call  him  as  a  witness  for  themselves,  as  in 
civil  cases.  In  the  latter,  where  there  is  some  evidence  against 
him,  but  it  is  deemed  insufficient,  a  separate  verdict  of  acquittal 
may  be  entered,  at  the  instance  of  the  prosecuting  officer,  who 
may  then  call  him  as  a  witness  against  the  others.^  On  the  same 
principle,  where  two  were  indicted  for  an  assault,  and  one  sub- 
mitted and  was  fined,  and  paid  the  fine,  and  the  other  pleaded 
"  not  guilty,"  the  former  was  admitted  as  a  competent  witness  for 
the  latter,  because  as  to  the  witness  the  matter  was  at  an  end.* 
But  the  matter  is  not  considered  as  at  an  end,  so  as  to  render  one 
defendant  a  competent  witness  for  another,  by  any  thing  short  of 
a  final  judgment  or  a  plea  of  guilty.^  Therefore,  where  two  were 
jointly  indicted  for  uttering  a  forged  note,  and  the  trial  of  one  of 
them  was  postponed,  it  was  held,  that  he  could  not  be  called  as 
a  witness  for  the  other.^  So,  where  two,  being  jointly  indicted 
for  an  assault,  pleaded  separately  "  not  guilty,"  and  elected  to  be 
tried  separately,  it  was  held,  that  the  one  tried  first  could  not  call 
the  other  as  a  witness  for  him.'^ 

1  Bull.  N.  P.  285 ;  Cas.  temp.  Hardw.  «  Commonwealth  v.  Marsh,  10  Pick. 
163.  67. 

2  Rex  V.  Sherman,  Cas.  temp.  Hardw.  ^  The  People  v.  Bill,  10  Johns.  95 
303.  [Mclntyre  v.  People,  5  Selden,  38].     In 

8  Eex  V.  Rowland,  Ry.  &  M.  401 ;  Rex  Rex  v.  Lafone,  5  Esp.  154,  where  one 

V.  Mutineers  of  the  "Bounty,"  cited  arg.  defendant  suffered  judgment  by  default, 

1  East,  312,  313.  Lord  Ellenborough  held  him  incompetent 

*  Rex  V.  Fletcher,  1  Stra.  633 ;  Reg.  to  testify  for  the  others ;  apparently  on 

V.  T/yons,  9  C.  &  P.  555;  Reg.  v.  Williams,  the  ground,  that  there  was  a  community 

8  C.  &  P.  283 ;  supra,  §  358  ;  Common-  of  guilt,  and  that  the  offence  of  one  was 

weahh  V.  Eastman,  1  Cush.  189.  the  offence  of  all.    But  no  authority  was 

s  Reg.  V.  Hincks,  1  Denis.  C.  C.  84.  cited  in  the  case,  and  the  decision  is  at 
[Where  two  defendants  were  jointly  in-  variance  with  the  general  doctrine  in 
dieted  for  an  assault,  and  one  was  de-  cases  of  tort.  The  reason  given,  more- 
faulted  on  his  recognizance,  his  wife  was  over,  assumes  the  very  point  in  dispute, 
held  to  be  a  competent  witness  for  the  namely,  whether  there  was  any  guilt  at 
other  defendant.  State  v.  Worthing,  31  all.  The  indictment  was  for  a  misde- 
Maine,  62.]  meanor,  in  obstructing  a  revenue   otiicer 


420 


LAW   OF  EVIDENCE. 


[part  m. 


§  364.  Functions  of  judge  and  witness  incompatible.  Before  we 
dismiss  the  subject  of  parties,  it  may  be  proper  to  take  notice  of 
the  case  where  the  facts  are  personally  known  by  the  judge  before 
whom  the  cause  is  tried.  And  whatever  difference  of  opinion 
may  once  have  existed  on  this  point,  it  seems  now  to  be  agreed 
that  the  same  person  cannot  be  both  witness  and  Judge  in  a  cause 
which  is  on  trial  before  him.  If  he  is  the  sole  judge,  he  cannot  be 
sworn  ;  and,  if  he  sits  with  others,  he  still  can  hardly  be  deen.ed 
capable  of  impartially  deciding  on  the  admissibility  of  his  own 
testimon}',  or  of  weighing  it  against  that  of  another.^  Whether 
his  knowledge  of  common  notoriety  is  admissible  proof  of  that 
fact  is  not  so  clearly  agreed.^  On  grounds  of  public  interest  and 
convenience,  a  judge  cannot  be  called  as  a  witness  to  testify  to 
what  took  place  before  him  in  the  trial  of  another  cause,^  though 
he  may  testify  to  foreign  and  collateral  matters  which  happened 
in  his  presence  while  the  trial  was  pending  or  after  it  was  ended.* 
In  regard  to  attorneys,  it  has  in  England  been  held  a  very  objec- 
tionable proceeding  on  the  part  of  an  attorney  to  give  evidence 
when  acting  as  advocate  in  the  cause ;  and  a  sufficient  ground  for 
a  new  trial.^  But  in  the  United  States  no  case  has  been  found 
to  proceed  to  that  extent ;  and  the  fact  is  hardly  ever  known  to 
occur. 

§  365.  Mental  deficiencies  We  proceed  now  to  consider  the 
SECOND  CLASS   of  pcrsons  incompetent  to  testify  as  witnesses ; 


in  the  execution  of  his  duty.  See  1  Phil. 
Evid.  G8.  But  where  two  were  jointly 
indicted  for  an  assault  and  battery,  and 
one  of  them,  on  motion,  was  tried  first, 
the  wife  of  tlie  otlier  was  held  a  compe- 
tent witness  in  liis  favor.  Motfit  v.  Tlie 
State,  2  IIum])h.  U9.  And  see  Jones  v. 
The  State,  1  Kelly,  610;  The  Common- 
wealth c.  Manson,  2  Ashm.  31 ;  snjim, 
§  335,  n.  ;  The  State  v.  Worthing,  1 
Kedingt.  (31  Maine)  (52. 

1  Ross  V.  liuhler,  2  Martin,  n.  s.  31.S. 
So  is  the  law  of  Spain,  Partid.  3,  tit.  16, 
1.  19;  1  Moreau  &  Carlton's  Tr.  p.  200;  and 
of  Scotland,  Glassford  on  Evid.  p.  602; 
Tait  on  Evid.  432;  Stair's  Inst,  book  iv. 
tit.  45,  4  ;  Erskine's  Inst,  book  iv.  tit.  2, 
83.  If  his  presi-nce  on  the  bench  is  nec- 
essary to  the  lejjal  constitution  of  the 
court,  he  cannot  be  sworn  as  a  witness, 
even  by  consent;  and  if  it  is  not,  and  his 
testimony  is  necessary  in  the  cause  on 
trial,  he  should  leave  the  bench  until  the 
trial  is  finished.     Morss  v.  Morss,  4  Am. 


Law  Rep.  k.  s.  611.  This  principle  haa 
not  been  extended  to  jurors.  Though 
the  jury  may  use  their  general  knowl- 
edge on  the  subject  of  any  question 
before  them ;  yet,  if  any  juror  has  a  par- 
ticular knowledge,  as  to  whi  -h  he  can 
testify,  he  must  be  sworn  as  n  witness. 
Kex  V.  Ilosser,  7  C.  &  P.  648;  Stones  v. 
Byron,  4  Dowl.  &  L.  303.  See  hifm, 
§  386,  n.  [As  to  referees,  see  a  %te,  §  240 ; 
post,  vol.  ii.  §  78.] 

2  Lord  Stair  and  Mr.  Erskine  seem  to 
have  been  of  opinion  that  it  was,  '■  unless 
it  be  overruled  by  pregnant  contrary  evi- 
dence." But  Mr.  (Jlassford  and  Mr.  Tait 
are  of  the  contrary  opinion.  See  the 
places  cited  in  the  preceding  note. 

8  Reg.  V.  Gazard,  8  C.  &  P.  595,  per 
Patteson,  J 

<  Rex  V.  Earl  of  Thanet,  27  Howell's 
St.  Tr.  847,  848.  See  snprn,  §  252,  as  to 
the  admissibility  of  jurors. 

*  Dunn  V.  Packwood,  11  Jur.  242  a. 


CHAP,  n.] 


COMPETENCY   OF   WITNESSES. 


421 


namely,  that  of  persons  deficient  in  UNDERSTANDrNG.  We 
have  already  seen,^  that  one  of  the  main  securities,  which  the 
law  has  provided  for  the  purity  and  truth  of  oral  evidence,  is, 
that  it  he  delivered  under  the  sanction  of  an  oath ;  and  that  this 
is  none  other  than  a  solemn  invocation  of  the  Supreme  Being,  as 
the  Omniscient  Judge.  The  purpose  of  the  law  being  to  lay 
hold  on  the  conscience  of  the  witness  by  this  religious  solemnity, 
it  is  obvious,  that  persons  incapable  of  comprehending  the  nature 
and  obligation  of  an  oath  ought  not  to  be  admitted  as  witnesses. 
The  repetition  of  the  words  of  an  oath  would,  in.  their  case,  be 
but  an  unmeaning  formality.  It  makes  no  difference  from  what 
cause  this  defect  of  understanding  may  have  arisen  ;  nor  whether 
it  be  temporary  and  curable,  or  permanent ;  whether  the  party 
be  hopelessly  an  idiot,  or  maniac,  or  only  occasionally  insane,  as 
a  lunatic ;  or  be  intoxicated  ;  or  whether  the  defect  arises  from 
mere  immaturity  of  intellect,  as  in  the  case  of  children.  While 
the  deficiency  of  understanding  exists,  be  the  cause  of  what  nature 
soever,  the  person  is  not  admissible  to  be  sworn  as  a  witness. 
But  if  the  cause  be  temporary,  and  a  lucid  interval  should  occur, 
or  a  cure  be  effected,  the  competency  also  is  restored.^ 


1  Supra,  §  327. 

2  6  Com.  Dig.  351,  352,  Testmoi'gne, 
A,  1 ;  Livingston  v.  Kiersted,  10  Johns. 
362;  Evans  v.  Hettich,  7  Wheat.  453, 
470  ;  White's  case,  2  Leach,  Cr.  Gas.  482  ; 
Tait  on  Evid.  pp.  342,  343.  Tlie  fact  of 
want  of  understanding  is  to  be  proved  by 
the  objecting  party,  by  testimony  aliunde. 
Robinson  v.  Dana,  16  Vt.  474.  See,  as 
to  intoxication,  Hartford  ?.".  Palmer,  16 
Johns.  143;  Gebhart  v.  Skinner,  15  S. 
&  R.  2.35;  Heinec.  ad  Pandect.  Par.  3, 
§  14.  Wiietlier  a  monomaninc  is  a  compe- 
tent witness  is  a  point  not  known  to  have 
been  directly  decided ;  and  upon  which 
text-writers  ditTer  in  opinion.  Mr.  Roscoe 
daems  it  the  safest  rule  to  exclude  their 
testimony.  Rose.  Grim.  Evid.  p.  128. 
Mr.  Best  considers  this  "  hard  measure." 
Best,  Princ.  Evid.  p.  168.  In  a  recent 
case  before  the  Privy  Council,  wliere  a 
will  was  c(/ntested  on  the  ground  of  inca- 
pacity in  the  mind  of  the  testator,  it  was 
lield,  that, if  the  mind  is  unsound  on  one 
subject,  and  this  unsoundness  is  at  all 
times  existing  upon  that  subject,  it  is  er- 
roneous to  suppose  the  mind  of  such  a 
person  really  sound  on  other  subjects  ; 
and  that  therefore  the  will  of  such  a  per- 
son, though  apparently  ever  so  rational 


and  proper,  was  void.  Waring  v.  Waring, 
12  Jur.  947,  Priv.  C.  Here,  the  power  of 
perceiving  facts  is  sound,  but  the  faculty 
of  comparing  and  of  judging  is  impaired. 
But  where,  in  a  trial  for  manslaughter,  a 
lunatic  p;itient  was  admitted  as  a  witness, 
who  had  been  confined  in  a  lunatic  asy- 
lum, and  who  labored  under  the  delusion, 
both  at  the  time  of  the  transaction  and  of 
the  trial,  that  he  was  possessed  by  twenty 
thousand  spirits,  but  whom  the  medical 
witness  believed  to  be  capable  of  giving 
an  account  of  any  transaction  that  hap- 
pened before  his  eyes,  and  who  appeared 
to  understand  the  obligation  of  an  oath, 
and  to  believe  in  future  rewards  and  pun- 
ishments,—  it  was  held,  that  his  testi- 
]nony  was  properly  received.  And  that 
where  a  person,  under  an  insane  delusion, 
is  offered  as  a  witness,  it  is  for  the  judge 
at  the  time  to  decide  upon  his  compe- 
tency as  a  witness,  and  for  the  jury  to 
judge  of  the  credibility  of  hi«  evidence. 
Reg.  V.  Hill,  15  Jur.  470;  5  Eng.  Law  & 
Eq.  547;  5  Cox,  Cr.  Gas.  259  [Holcomb 
V.  Holcomb,  28  Conn.  177.  If  the  witness 
can  discern  right  from  wrong,  and  has 
power  to  speak  from  memory,  he  is  com- 
petent. Coleman  v.  Com.,  25  Gratt 
(Va.)  865]. 


422  LAW   OF   EVIDENCE.  [PAKT  IH. 

§  366.  Deaf  and  dumb  persons.  In  regard  to  persons  deaf  and 
dumb  from  their  birth,  it  has  been  said  that,  in  presumption  of 
law,  they  are  idiots.  And  though  this  presumption  has  not  now 
the  same  degree  of  force  which  was  formerly  given  to  it,  that 
unfortunate  class  of  persons  being  found  by  the  light  of  modern 
science  to  be  much  more  intelligent  in  general,  and  susceptible  of 
far  higher  culture,  than  was  once  supposed  ;  yet  still  the  presump- 
tion is  so  far  operative,  as  to  devolve  the  burden  of  proof  on  the 
party  adducing  the  witness,  to  show  that  he  is  a  person  of  suffi- 
cient understanding.  This  being  done,  a  deaf  mute  may  be  sworn 
and  give  evidence,  by  means  of  an  interpreter.^  If  he  is  able  to 
communicate  his  ideas  perfectly  by  writing,  he  will  be  required 
to  adopt  that,  as  the  more  satisfactory,  and  therefore  the  better 
method ;  ^  but  if  his  knowledge  of  that  method  is  imperfect,  he 
will  be  permitted  to  testify  by  means  of  signs.^ 

§  367.  Children.  But  in  respect  to  children,  there  is  no  precise 
age  within  which  they  are  absolutely  excluded,  on  the  presump- 
tion that  they  have  not  sufficient  understanding.  At  the  age  of 
fourteen,  every  person  is  presumed  to  have  common  discretion 
and  understanding,  until  the  contrary  appears  ;  but  under  that 
age  it  is  not  so  presumed  ;  and  therefore  inquiry  is  made  as  to  the 
degree  of  understanding,  which  the  child  offered  as  a  witness  may 
possess  ;  and  if  he  appears  to  have  sufficient  natural  intelligence, 
and  to  have  been  so  instructed  as  to  comprehend  the  nature  and 
effect  of  an  oath,  he  is  admitted  to  testify,  whatever  his  age  may 
be.*  This  examination  of  the  child,  in  order  to  ascertain  his 
capacity  to  be  sworn,  is  made  by  the  judge  at  his  discretion  ;  and 
though,  as  has  been  just  said,  no  age  has  been  precisely  fixed, 
within  which  a  child  shall  be  conclusively  presumed  incapable, 
yet,  in  one  case  a  learned  judge  promptly  rejected  the  dying  de- 
clarations of  a  child  of  four  years  of  age,  observing,  that  it  was 
quite  impossible  that  she,  however  precocious  her  mind,  could  have 
had  that  idea  of  a  future  state  which  is  necessary  to  make  such 

1  Rustin's  case,  1  Leach,  Cr.  Cas.  455  ;  ror.  Antiq.  vol.  iv.  p.  24n  ;  Ancient  Lnwa 

Tait  on  Evid.  p.  343;  1  Huss.  on  Crimes,  and  Statutes  of  England,  vol.  i.  p.  71. 
p.  7  ;  1  Hale,  V.  C.  34.     Lord  Hale  refers,  -  Morrison  v.  Lennard,  3  C.  &  P.  127. 

lor  authority  as  to  the  ancient  presump-  »  Tlie   State  v.  l)e  Wolf,  8  Conn.  93; 

tion,  to  the  La\vs  of  King  Alfred,  c.  14,  Commonwealth    v.   Hill,    14   Mass.  207; 

whicii  is  in  these  words  :    "  Si  quis  mil-  Snyder  v.  Nations,  4  Blaekf.  295. 
tus  vel  surdus  natus  sit,  ut  peccata  sua  <  McNally's  Evid.  p.  149,  c.  11;  Bull, 

confiteri  nequeat,  nee  inficiari,  emendet  N.  P.  293;  1  Hale,  P.  C.  302;  2  Russ.  on 

l>aier  scelera  ipsius."     Vid.  Leges  Barba-  Crimes,  p.  590  ;   Jackson  v.  Gndley,  18 

'  Johns.  9«. 


CHAP,  n.] 


COMPETENCY  OF  WITNESSES. 


423 


declarations  admissible.^  On  the  other  hand,  it  is  not  unusual 
to  receive  the  testimony  of  cliildren  under  nine,  and  sometimes 
even  under  seven  years  of  age,  if  they  appear  to  be  of  sufGcient 
understanding  ;  ^  and  it  has  been  admitted  even  at  the  age  of  five 
years.^  If  the  child,  being  a  principal  witness,  appears  not  yet 
suflSeiently  instructed  in  the  nature  of  an  oath,  the  court  will,  in 
its  discretion,  put  off  the  trial,  that  this  may  be  done.^  But 
whether  the  trial  ought  to  be  put  off  for  the  purpose  of  instruct- 
ing an  adult  witness  has  been  doubted.^ 

§  368.  Moral  deficiencies.  The  THIRD  CLASS  of  persons  incom- 
petent to  testify  as  witnesses  consists  of  those  who  are  insensible 
TO  THE  obligations  OF  AN  OATH,  from  defect  of  religious  senti- 
ment and  belief.  The  very  nature  of  an  oath,  it  being  a  religious 
and  most  solemn  appeal  to  God,  as  the  Judge  of  all  men,  presup- 
poses that  the  witness  believes  in  the  existence  of  an  omniscient 
Supreme  Being,  who  is  "  the  rewarder  of  truth  and  avenger  of 
falsehood  ;  "  ^  and  that,  by  such  a  formal  appeal,  the  conscience 
of  the  witness  is  affected.  Without  this  belief,  the  person  cannot 
be  subject  to  that  sanction,  which  the  law  deems  an  indispensable 
test  of  truth.^     It  is  not  sufficient,  that  a  witness  believes  hmiself 


1  Eex  V.  Pike,  3  C.  &  P.  598 ;  The 
People  V.  McNair,  21  Wend.  608.  Neither 
can  the  declarations  of  such  a  child,  if 
living,  be  received  in  evidence.  Rex  v. 
Brasier,  1  East,  P.  C.  443. 

2  1  East,  P.  C.  442 ;  Commonwealth 
17.  Hutchinson,  10  Mass.  225;  McNally's 
Evid.  p.  154;  The  State  v.  Whittier,  8 
Shepl.  341. 

*  Rex  V.  Brasier,  1  Leach,  Cr.  Gas. 
237  ;  s.  c.  Bull.  N.  P.  293 ;  s.  c.  1  East, 
P.  C.  443. 

*  McNally's  Evid.  p.  154;  Rex  v. 
White,  2  Leach,  C.  Gas.  482,  n.  («); 
Rex  V.  Wade,  1  Mood.  Gr.  Gas.  86.  But 
in  a  late  case,  before  Mr.  Justice  Patteson, 
the  learned  judge  said,  that  he  must  be 
satisfied  that  the  child  felt  the  binding 
obligation  of  an  oath,  from  the  general 
course  of  her  religious  education  ;  and 
that  the  effect  of  the  oath  upon  the  con- 
science should  arise  from  religious  feel- 
ings of  a  permanent  nature,  and  not  merely 
from  instructions,  confined  to  the  nature 
of  an  oath,  recently  communicated,  for 
the  purpose  of  the  particular  trial.  And, 
therefore,  the  witness  liaving  been  visited 
but  twice  by  a  clergyman,  who  had  given 
her  some  instructions  as  to  the  nature  of 
an  oath,  but  still  she  had  but  an  imperfect 
understanding  on  the  subject,  her  evi- 


dence was  rejected.  Rex  t*.  Williams,  7 
C.  &  P.  320.  In  a  more  recent  case, 
where  the  principal  witness  for  the  prose- 
cution was  a  female  child,  of  six  years 
old,  wholly  ignorant  of  the  nature  of  an 
oath,  a  postponement  of  the  trial  was 
moved  for,  that  she  might  be  instructed 
on  that  subject ;  but  Pollock,  G.  B.,  re- 
fused the  motion  as  tending  to  endanger 
the  safety  of  public  justice;  observing 
that  more  probably  would  be  lost  in  mem- 
ovy,  than  would  be  gained  in  point  of  re- 
ligious education  ;  adding,  however,  that 
in  cases  where  the  intellect  was  suffi- 
ciently matured,  but  the  education  only 
hadbeenneglected.a  postponement  might 
be  very  proper.  Reg.  v.  Nicholas,  2  G. 
&  K.  246. 

5  See  Rex  v.  Wade,  1  Mood.  Gr.  Gas, 
86. 

6  Per  Lord  Hardwicke,  1  Atk.  48. 
The  opinions  of  the  earlier  as  well  as 
later  jurists,  concerning  the  nature  and 
obligation  of  an  oath,  are  quoted  and 
discussed  much  at  large,  in  Omichund  v. 
Barker,  1  Atk.  21,  and  in  Tyler  on  Oaths, 
passim,  to  which  the  learned  reader  is 
referred. 

7  1  Stark.  Evid.  22.  "  The  law  is  wise 
in  requiring  the  highest  attainable  sanc- 
tion for  the  truth  of  testimony  given  ;  and 


424 


LAW   OF  EVIDENCE. 


[part  m. 


bound  to  speak  the  truth  from  a  regard  to  character,  or  to  the 
common  interests  of  society,  or  from  fear  of  the  punishment  which 
the  law  inflicts  upon  persons  guilty  of  perjury.  Snch  motives 
have  indeed  their  influence,  but  they  are  not  considered  as  aiford- 
ing  a  sufficient  safeguard  for  the  strict  observance  of  truth.  Our 
la  w,  in  common  with  the  law  of  most  civilized  countries,  requires 
the  additional  security  afforded  by  the  religious  sanction  implied 
in  an  oath  ;  and,  as  a  necessary  consequence,  rejects  all  witnesses, 
who  are  incapable  of  giving  this  security.^  Atheists,  therefore, 
and  all  infidels,  that  is,  those  who  profess  no  religion  that  can 
bind  their  consciences  to  speak  truth,  are  rejected  as  incompetent 
to  testify  as  witnesses.^ 

§  3G9.  Nature  of  religious  faith  required.  As  to  the  nature  and 
degree  of  religious  faith  required  in  a  witness,  the  rule  of  law,  as 
at  present  understood,  seems  to  be  this,  that  the  person  is  com- 
petent to  testify,  if  he  believes  in  the  being  of  God,  and  a  future 
state  of  rewards  and  punishments ;  that  is,  that  Divine  punish- 
ment will  be  the  certain  consequence  of  perjury.  It  may  be 
considered  as  now  generally  settled,  in  this  country,  that  it  is  not 
material,  whether  the  witness  believes  that  the  punishment  will 
be  inflicted  in  tliis  world,  or  in  the  next.  It  is  enough,  if  he  has 
the  religious  sense  of  accountability  to  the  Omniscient  Being, 
who  is  invoked  by  an  oath.^ 


is  consistent  in  rejecting  all  witnesses  in- 
capable of  feeling  this  sanction,  or  of  re- 
ceiving this  test ;  whether  this  incapacity 
arises  from  the  imbecility  of  their  under- 
standing, or  from  its  perversity.  It  does 
not  impute  guilt  or  blame  to  either.  If  the 
witness  is  evidently  into.xicated,  he  is  not 
allowed  to  be  sworn ;  because,  for  the 
time  being,  he  is  evidently  incapable  of 
feeling  the  force  and  obligation  of  an  oath. 
The  von  compos,  and  the  infant  of  tender 
age,  are  rejected  for  the  same  reason,  but 
without  blame.  The  atheist  is  also  re- 
jected, because  he,  too,  is  incapable  of 
realizing  the  obligation  of  an  oath,  in  con- 
sequence of  his  unbelief.  Tlielaw  looks 
only  to  the  fact  of  incapacit.y,  not  to  the 
cause,  or  the  manner  of  avowal.  Whether 
it  be  calmly  insinuated  with  the  elegance 
of  Gibbon,  or  roared  forth  in  the  disgust- 
ing blasphemies  of  Paine,  still  it  is  athe- 
ism ;  and  to  require  the  mere  formality  of 
an  oath,  from  one  who  avowedly  despises, 
or  is  incapable  of  feeling,  its  peculiarsanc- 
tion,  would  be  but  a  mockery  of  justice." 
1  Law  Iteporter,  pp.  o46,  347. 


1  1  Phil.  Evid.  10  (9th  ed.). 

2  Bull.  N.  P.  292;  1  Stark.  Evid.  22; 
1  Atk.  40,  45;  1  Phil.  Evid.  10  (Oth  ed.). 
The  objection  of  incompetency,  from  the 
want  of  belief  in  the  e.xistence  of  God,  is 
abolished;  as  it  seems,  in  Micliiijnn,  by 
force  of  the  statute  which  enacts  that  no 
person  shall  be  deemed  incompetent  as  a 
witness  "on  account  of  his  opinions  on 
the  subject  of  religion."  Rev.  Stat.  1846, 
c.  102,  §  96.  So  in  Maine,  Rev.  Stat. 
c.  82.  And  in  Wisconsin,  Const,  art.  1, 
§  18.  And  in  Missouri,  Rev.  Stat.  1845, 
c.  186,  §  21.  And  in  Mass.  Gen.  Stat, 
c.  1-']1,  §  12.  In  some  other  States,  it  is 
made  sufficient,  by  statute,  if  the  witness 
believes  in  the  existence  of  a  Supreme  Be- 
ing. Connecticut,  Rev.  Stat.  1849,  tit.  I, 
§  140;  New  Hampshire,  ncv.  Stat.  1842, 
c.  188,  §  9.  In  others,  it  is  requisite  that 
the  witness  should  believe  in  the  exist- 
ence of  a  Supreme  Being,  w/io  will  punish 
false  swearinif.  JVew  York,  Rev.  Stat, 
vol.  ii.  p.  505  (3d  ed.);  Missouri,  Rev. 
Stat    1885.  p.  419. 

'  The  proper  test  of  the  competency  of 


CHAP,  n.] 


COMPETENCY   OF  WITNESSES. 


425 


§  370.  Moral  competency  presumed.  It  should  here  be  observed 
that  defect  of  religious  faith  is  never  presumed.  On  the  contrary, 
the  law  presumes  that  every  man  brought  up  in  a  Christia  n  land , 
where  God  is  generally  acknowledged,  does  believe  in  hira,  and 
fear  liim.  The  charity  of  its  judgment  is  extended  alike  to  all. 
The  burden  of  proof  is  not  on  the  party  adducing  the  witness,  to 
prove  that  he  is  a  believer ;  but  it  is  on  the  objecting  party,  to 
prove  that  he  is  not.  Neither  does  the  law  presume  that  any  man 
is  a  hypocrite.  On  the  contrary,  it  presumes  him  to  be  what  he 
professes  himself  to  be,  whether  atheist  or  Christian  ;  and  the 
state  of  a  man's  opinions,  as  well  as  the  sanity  of  his  mind,  being 
once  proved,  is,  as  Ave  have  already  seen,i  presumed  to  continue 
unchanged,  until  the  contrary  is  shown.  The  state  of  his  relig- 
ious belief  at  the  time  he  is  offered  as  a  witness  is  a  fact  to  be 
ascertained  ;  and  this  is  presumed  to  be  the  common  faith  of  the 
country,  unless  the  objector  can  prove  that  it  is  not.  The  ordi- 
nary mode  of  showing  this  is  by  evidence  of  his  declarations, 
previously  made  to  others  ;  the  person  himself  not  being  interro- 
gated ;  2  for  the  object  of  interrogating  a  witness,  in  these  cases, 


a  witness  on  the  score  of  a  religious  be- 
lief was  settled,  upon  great  consideration, 
in  the  case  of  Oniichund  v.  Barker,  Willes, 
545,  s.  c.  1  Atk.  21,  to  be  the  belief  of  a 
God,  and  that  he  will  reward  and  punish 
us  according  to  our  deserts.  This  rule 
was  recognized  in  Butts  v.  Swartwood,  2 
Cowen.  431 ;  The  People  v.  Matteson,  2 
Cowen,  433,  573,  n. ;  and  by  Story,  J., 
in  Wakefield  v.  Ross,  5  Mason,  18 ;  s.  p. 
9  Dane's  Abr.  317  ;  and  see  Brock  v. 
Milligan,  1  Wilcox,  125  ;  Arnold  v.  Ar- 
nold, 13  Vt.  362.  Whether  any  belief  in 
a  future  state  of  existence  is  necessary, 
provided  accountability  to  God  in  this  life 
is  acknowledged,  is  not  perfectly  clear. 
In  Commonwealth  v.  Bachelor,  4  Am.  Ju- 
rist, 81,  Thacher,  J.,  seemed  to  think  it 
was.  IJut  in  Hunscom  v.  Hunscom,  14 
Mass.  184,  the  court  held,  that  mere  dis- 
belief in  a  future  existence  went  only  to 
the  credibility.  This  degree  of  disbelief 
is  not  inconsistent  with  the  faith  required 
in  Omichund  v.  Barker.  The  only  case, 
clearly  to  the  contrary,  is  Atwood  v.  Wel- 
ton,  7  Conn.  66.  In  Curtis  v.  Strong,  4  Day, 
51,  the  witness  did  not  believe  in  the  obli- 
gation of  an  oath  ;  and  in  Jackson  v.  Grid- 
ley,  18  Johns.  98,  he  was  a  mere  atheist, 
without  any  sense  of  religion  whatever. 
All  that  was  said,  in  these  two  cases, 
beyond  the  point  in  judgment,  was  extra- 


judicial. In  Maine,  a  belief  in  the  exist- 
ence of  the  Supreme  Being  was  rendered 
sufficient,  by  Stat.  1833,  c.  58,  without 
any  reference  to  rewards  or  punishments. 
Smith  V.  Coflln,  6  Shepl.  157  ;  but  even 
this  seems  to  be  no  longer  required.  See 
supra,  §  368,  n.  See  further,  the  People 
V.  McGarren,  17  Wend.  460;  Cubbison  v. 
McCreary.  2  Watts  &  Serg.  262 ;  Brock 
V.  Milligan,  10  Ohio,  121;  Thurston  v. 
Whitney,  2  Law  Rep.  n.  s.  18  [Blair 
V.  Seaver,  26  Penn.  St.  274 ;  Bennett  v. 
State,  1  Swann,  44.] 

1  Supra,  §  42.  The  State  v.  Stinson, 
7  Law  Reporter,  383. 

^  [The  question  whether  a  witness  is, 
oris  not,  an  atheist,  and  so  an  incompetent 
witness,  is  a  question  of  fact  for  the  pre- 
siding judge  alone,  and  his  decision  is  not 
open  to  exception.  Commonwealth  v. 
Hills,  10  Cush.  530,  532.  The  want  of 
such  religious  belief  must  be  established 
by  other  means  than  the  examination  of 
the  witness  upon  the  stand.  He  is  not  to 
be  questioned  as  to  his  religious  belief, 
nor  required  to  divulge  his  opinion  upon 
that  subject  in  answer  to  questions  put  to 
him  while  under  examination.  If  he  is 
to  be  set  aside  for  want  of  such  religious 
belief,  the  fact  is  to  be  sliown  by  other 
witnesses,  and  by  evidence  of  his  pre- 
viously expressed  opinions  voluntarily 


426 


LAW   OF   EVIDENCE. 


[PAKT  in. 


before  he  is  sworn,  is  not  to  obtain  the  knowledge  of  other  facts, 
but  to  ascertain  from  his  ansAvers  the  extent  of  his  capacity,  and 
whether  he  has  sufficient  understanding  to  be  sworn.^ 


marie  known  to  others.  By  Shaw,  C.  J., 
in  Commonwealth  v.  Smith,  2  Gray,  516. 
In  tliis  case  the  witness  liad  testified  in 
cliief,  and  on  cross-examhiation  was  asked 
if  he  believed  in  the  existence  of  a  God, 
and  replied  that  he  did.  Upon  this  the 
court  interposed  and  refused  to  allow 
counsel  to  put  further  questions  in  regard 
to  the  religious  belief  of  the  witness,  and 
the  court  say  :  "  Aside,  therefore,  of  the 
propriety  of  allowingfurther  inquiry,  after 
the  witness  had  answered  affirmatively  the 
general  question  of  his  belief  in  the  exist- 
ence of  God,  in  the  opinion  of  the  court, 
the  whole  inquiry  of  the  witness  upon 
this  matter  was  irregular  and  unauthor- 
ized."] 

1  Swift's  Evid.  48 ;  Smith  v.  Coffin, 
6  Shepl.  157.  It  has  been  questioned, 
whether  the  evidence  of  his  declarations 
ought  not  to  be  confined  to  a  period  shortly 
anterior  to  the  time  of  proving  them,  so 
that  no  change  of  opinion  might  be  pre- 
sumed. Brock  V.  Milligan,  1  Wilcox,  126, 
per  Wood,  J. 

"  The  witness  himself  is  never  ques- 
tioned in  worfer/i  practice,  as  to  his  religious 
belief,  though  formerly  it  was  otherwise. 
(1  Swift's  Dig.  7;W;  5  Mason,  19;  Ameri- 
can Jurist,  vol.  iv.  p.  79,  n  )  It  is  not 
allowed  even  after  he  has  been  sworn. 
(The  Queen's  case,  2  B.  &  B.  26'4.)  Not 
because  it  is  a  question  tending  to  disgrace 
him,  but  because  it  would  be  a  personal 
scrutiny  into  the  state  of  his  faith  and 
conscience,  foreign  to  the  spirit  of  our 
institutions.  No  man  is  obliged  to  avow 
his  belief ;  but  if  he  voluntarily  does  avow 
it,  there  is  no  reason  why  the  avowal 
should  not  be  proved,  like  any  other  fact. 
The  truth  and  sincerity  of  the  avowal,  and 
the  contiimanceof  the  belief  thus  avowed, 
are  presumed,  and  very  justly  too,  till 
they  are  disproved.  If  his  opinions  have 
been  subsequently  changed,  this  change 
will  generally,  if  not  always,  be  provable 
in  the  same  mode.  (Atwood  v.  Welton, 
7  Conn.  6(5;  Curtis  v.  Strong,  4  Day,  51  ; 
Swift's  Evid.  48-50  ;  Scott  v.  Hooper,  14 
Vt.  535 ;  Mr.  Christian's  note  to  3  Bl. 
Comm.  30y;  1  Phil.  Evid.  18;  Common- 
wealth V.  Bachelor,  4  Am.  Jur.  79,  n.) 
If  the  change  of  opinion  is  very  recent, 
this  furnishes  no  good  ground  to  admit 
the  witness  himself  to  declare  it ;  because 
of  the  greater  inconvenience  which  would 
result  from  thus  opening  a  door  to  fraud, 
than  from  adhering  to  the  rule  requiring 
other  evidence   of  this  fact.      The   old 


cases,  in  which  the  witness  himself  was 
questioned  as  to  his  belief,  have  on  this 
point  been  overruled.  See  Christian's  note 
to  3  Bl.  Comm.  [369]  n.  (30).  The  law, 
therefore,  is  not  reduced  to  any  absurdity 
in  this  matter.  It  exercises  no  inquisi- 
torial power;  neither  does  it  resort  to 
secondary  or  hearsay  evidence.  If  the 
witness  is  objected  to,  it  asks  third  per- 
sons to  testify,  whether  he  has  declared 
his  belief  in  God,  and  in  a  future  state  of 
rewards  and  punishments,  &c.  Of  this  fact 
they  are  as  good  witnesses  as  he  could  be, 
and  the  testimony  is  primary  and  direct. 
It  should  further  be  noticed,  that  the 
question,  whether  a  person,  about  to  be 
sworn,  is  an  atheist  or  not,  can  never  be 
raised  by  any  one  but  an  adverse  party. 
No  stranger  or  a  volunteer  has  a  right  to 
object.  There  must,  in  every  instance, 
be  a  suit  between  two  or  more  parties, 
one  of  whom  offers  the  person  in  ques- 
tion as  a  competent  witness.  The  pre- 
sumption of  law,  tliat  every  citizen  is  a 
believer  in  the  common  religion  of  the 
country,  holds  good  until  it  is  disproved; 
and  it  would  be  contrary  to  all  rule  to 
allow  any  one,  not  party  to  the  suit,  to 
thrust  in  his  objections  to  the  course  pur- 
sued by  the  litigants.  This  rule  and 
uniform  course  of  proceeding  shows  how 
much  of  the  morbid  sympathy  expressed 
for  the  atheist  is  wasted.  For  there  is 
nothing  to  prevent  him  from  taking  any 
oath  of  office ;  nor  from  swearing  to  a 
complaint  before  a  magistrate  ;  nor  from 
making  oath  to  his  answer  in  chancery. 
In  this  last  case,  indeed,  he  could  not  be 
objected  to,  for  another  reason  ;  namely, 
that  the  plaintiff,  in  his  bill,  requests  the 
court  to  require  him  to  answer  upon  his 
oath.  In  all  these,  and  many  other  simi- 
lar cases,  there  is  no  person  authorized  to 
raise  an  objection.  Neither  is  the  ques- 
tion permitted  to  be  raised  against  the 
atheist,  where  he  himself  is  tiie  adverse 
party,  and  offers  his  own  oath,  in  tlie 
ordinary  course  of  proceeding.  If  he 
would  make  affidavit,  in  his  own  cause, 
to  the  absence  of  a  witness,  or  to  hold  to 
bail,  or  to  the  trutii  of  a  plea  in  abate- 
ment, or  to  the  loss  of  a  paper,  or  to  the 
genuineness  of  his  books  of  account,  or 
to  his  fears  of  bodily  harm  from  one 
against  whom  he  requests  surety  of  the 
peace,  or  would  take  the  poor  debtor's 
oath;  in  these  and  the  like  cases  the  uni- 
form course  is  to  receive  his  oatl.  like 
any  other  person's.      The  law,  in  luch 


CHAP,  n.] 


COMPETENCY   OF   WITNESSES. 


427 


§  371.  Witnesses,  how  sworn.  It  may  be  added,  in  this  place, 
that  all  witnesses  are  to  be  sworn  according  to  the  peculiar  cere- 
monies of  their  own  religion,  or  in  such  manner  as  they  may 
deem  binding  on  their  own  consciences.  If  the  witness  is  not  of 
the  Christian  religion,  the  court  will  inquire  as  to  the  form  in 
which  an  oath  is  administered  in  his  own  country,  or  among 
those  of  his  own  faith,  and  will  impose  it  in  that  form.  And  if, 
being  a  Christian,  he  has  conscientious  scruples  against  taking  an 
oath  in  the  usual  form,  he  will  be  allowed  to  make  a  solemn 
religious  asseveration,  involving  a  like  appeal  to  God  for  the  truth 
of  his  testimony,  in  any  mode  which  he  shall  declare  to  be  bind- 
ing on  his  conscience.^  The  court,  in  ascertaining  whether  the 
form  in  which  the  oath  is  administered  is  binding  on  the  con- 
science of  the  witness,  may  inquire  of  the  witness  himself ;  and  the 
proper  time  for  making  this  inquiry  is  before  he  is  sworn.^  But 
if  the  witness,  without  making  any  objection,  takes  the  oath  in 
the  usual  form,  he  may  be  afterwards  asked,  whether  he  thinks 
the  oath  binding  on  his  conscience  ;  but  it  is  unnecessary  and 
irrelevant  to  ask  him,  if  he  considers  any  other  form  of  oath  more 
binding,  and  therefore  such  question  cannot  be  asked.^  If  a  wit- 
ness, without  objecting,  is  sworn  in  the  usual  mode,  but,  being  of 
a  different  faith,  the  oath  was  not  in  a  form  affecting  his  con- 


cases,  does  not  know  that  he  is  an  atlie- 
ist;  that  is,  it  never  allows  the  objection 
of  infidelity  to  be  made  against  any  man, 
seeking  his  own  riglits  in  a  court  of  jus- 
tice ;  and  it  conclusively  and  absolutely 
presumes  that,  so  far  as  religious  belief 
is  concerned,  all  persons  are  capable  of 
an  oath,  of  whom  it  requires  one,  as  the 
condition  of  its  protection,  or  its  aid ; 
probably  deeming  it  a  less  evil,  tliat 
the  solemnity  of  an  oath  should,  in  few 
instances,  be  mocked  by  those  who  feel 
not  its  force  and  meaning,  than  that  a  citi- 
zen should,  in  any  case,  be  deprived  of 
the  benefit  and  protection  of  the  law,  on 
the  ground  of  his  religious  belief.  The 
state  of  his  faith  is  not  inquired  into, 
where  his  own  rights  are  concerned.  He 
is  only  prevented  from  being  made  the 
instrument  of  taking  away  those  of 
others."  1  Law  Reporter,  pp.  347, 348.  [If 
the  witness  has  been  once  rejected,  he  will 
be  accepted  subsequently  on  proof  of  a 
change  of  views.  State  v.  Stinton,  7  Law 
Reporter,  383.] 

1  Omichund  v.  Barker,  1  Atk.  21,  46 ; 
8.   c.   Willes,  538,  545-549;  Ramkissen- 


seat  V.  Barker,  1  Atk.  19;  Atcheson  v. 
Everitt,  Cowp.  389,  390 ;  Bull.  N.  P.  292 ; 
1  Phil.  Evid.  9-11 ;  1  Stark.  Evid.  22,  23; 
Rex  V.  Morgan,  1  Leach,  Cr.  Gas.  64 ; 
Vail  V.  Nickerson,  6  Mass.  262  ;  Edmonds 
I'.  Rowe,  Ry.  &  M.  77  ;  Commonwealth  v. 
Buzzell,  1(3  Pick.  153.  "  Quumque  sit  ad- 
severatio  religiosa,  satis  patet  jusjuran- 
dum  attemperandum  esse  cuj  usque  reli- 
gioni."  Heinec.  ad  Pand.  pars  3,  §§  13, 
15.  "  Quodcunque  nomen  dederis,  id 
utique  constat,  omne  jusjurandum  pro- 
ficisci  ex  fide  et  persuasione  jurantis;  et 
inutile  esse,  nisi  quis  credat  Deum,  quern 
testem  advocat,  perjurii  sui  idoneum  esse 
vendicem.  Id  autera  credat,  qui  jurat 
per  Deum  suum,  per  sacra  sua,  et  ex  sua 
ipsius  animi  religione,"  &c.  Bynkers. 
Obs.  Jur.  Rom.  lib.  6,  c.  2. 

^  By  Stat.  1  &  2  Vict.  c.  105,  an  oath 
is  binding,  in  whatever  form,  if  adminis- 
tered in  such  form  and  with  such  cere- 
monies as  the  person  may  declare  bind- 
ing. But  the  doctrine  itself  is  conceived 
to  be  common  law. 

3  The  Queen's  case,  2  B.  &  B,  284. 


428  LAW   OF   EVIDENCE.  [PAET  HI. 

science,  as  if,  being  a  Jew,  he  was  sworn  on  the  Gospels,  he  is 
still  punishable  for  perjury,  if  he  swears  falsely.^ 

§  372.  Infamous  persons.  Under  this  general  head  of  exclusion, 
because  of  insensibility  to  the  obligation  of  an  oath,  may  be 
ranked  the  case  of  persons  infamous  ;  that  is,  persons  who,  what- 
ever may  be  their  professed  belief,  have  been  guilty  of  those 
heinous  crimes  which  men  generally  are  not  found  to  commit, 
unless  when  so  depraved  as  to  be  unworthy  of  credit  for  truth. 
The  basis  of  the  rule  seems  to  be,  that  such  a  person  is  morally 
too  corrupt  to  be  trusted  to  testify ;  so  reckless  of  the  distinction 
between  truth  and  falsehood,  and  insensible  to  the  restraining 
force  of  an  oath,  as  to  render  it  extremely  improbable  that  he 
will  speak  the  truth  at  all.  Of  such  a  person  Chief  Baron  Gil- 
bert remarks,  that  the  credit  of  his  oath  is  overbalanced  by  the 
stain  of  his  iniquity .^  The  party,  however,  must  have  been 
legally  adjudged  guilty  of  the  crime.  If  he  is  stigmatized  by 
public  fame  only,  and  not  by  the  censure  of  law,  it  affects  the 
credit  of  his  testimony,  but  not  his  admissibility  as  a  witness.^ 
The  record,  therefore,  is  required  as  the  sole  evidence  of  his  guilt ; 
no  other  proof  being  admitted  of  the  crime  ;  not  only  because  of 
the  gross  injustice  of  trying  the  guilt  of  a  third  person  in  a  case 
to  which  he  is  not  a  party,  but  also,  lest,  in  the  multiplication  of 
the  issues  to  be  tried,  the  principal  case  should  be  lost  sight  of, 
and  the  administration  of  justice  should  be  frustrated.* 

§  373.    What  constitutes  infamy.     It  is  a  point  of  no  small  diffi- 

1  Sells  V.  Hoare,  3  B.  &  B.  232 ;  The  Pendock  v.  Mackinder,  Willes,  G66.  In 
State  y.  Whisonhurst, '2  Hawks,  458.  But  Coimecticuf,  the  iufamy  of  tlie  witness 
the  adverse  party  cannot,  for  that  cause,  goes  now  only  to  his  credibility.  Kev. 
have  a  new  trial.  Wliether  he  may,  if  a  Stat.  1849,  tit.  1,  §  141.  So  in  Michiqan. 
witness  on  the  other  side  testified  without  Rev.  Stat.  1846,  c.  102,  §  99.  And  in 
having  been  sworn  at  all,  qiuere.  If  tlie  Ufassacltusetts.  Gen.  Stat.  c.  131,  §  13. 
omission  of  the  oath  was  known  at  the  And  in  loiva.  Code  of  1851,  art.  2388. 
time,  it  seems  he  cannot.  Lawrence  v.  In  Florida,  a  conviction  of  perjury  is  a 
Houghton,  5  Johns.  129  ;  White  v.  Hawn,  perpetual  ohstacle  to  the  competency  of 
Id.  351.  But  if  it  was  not  discovered  the  party  as  a  witness,  notwithstanding 
until  after  the  trial,  he  may.  Hawks  v.  he  may  have  been  pardoned  or  punished. 
Baker,  0  Greenl.  72.  [As  to  the  mode  of  But  convictions  for  other  crimes  go  only 
administering  the  oatli  to  deaf  and  dumb  to  the  credibility,  except  the  crimes  of 
persons,  see  supra,  §  36(3.]  murder,  perjury, piracy,  forgery,  larceny, 

2  1  Gilb.  Evid.  by  Lofft,  p.  256.  It  robbery,  arson,  sodomy,  or  buggery 
was  formerly  thought,  that  an  infamous  Convictions  for  any  crime  in  another 
puiiis/imeut,  for  whatever  crime,  rendered  State  go  to  the  credibility  only.  Thomp- 
the  person  incompetent  as  a  witness,  by  son's  l)ig.  pp.  334,  335. 

reason  of  infamy.     But  this  notion  is  ex-  ^  2  Dods.  186,  per  Sir  Wm.  Scott, 

ploded  ;  and  it  is  now  settled  that  it  is  the  ♦  Rex  v.  Castel  Careinion,  8  East,  77  ; 

crime  and  not  the  punisiiment  that  ren-  Lee  i'.  Gansell,  Cowp.  3,  per  Ld.  Alans- 

dcrs  the  man  infamous.     Bull.  N.  P.  292;  field. 


CHAP.  II.] 


COMPETENCY   OF   WITNESSES. 


429 


culty  to  determine  precisely  the  crimes  which  render  the  perpe- 
trator thus  infamous.  The  rule  is  justly  stated  to  require,  that 
"the  publicum  judichnn must  be  upon  an  offence, implying  such  a 
dereliction  of  moral  principle,  as  carries  with  it  a  conclusion  of  a 
total  disregard  to  the  obligation  of  an  oath."  ^  But  the  difficulty 
lies  in  the  specification  of  those  offences.  The  usual  and  more 
general  enumeration  is,  treasoti,,  felon//,  and  the  crimen  falsi.^  In 
regard  to  the  two  former,  as  all  treasons,  and  almost  all  felonies, 
were  punishable  with  death,  it  was  very  natural  that  crimes, 
deemed  of  so  grave  a  character  as  to  render  the  offender  unworthy 
to  live,  should  be  considered  as  rendering  him  unworthy  of  be- 
lief in  a  court  of  justice.  But  the  extent  and  meaning  of  the 
term  crimen  falsi,  in  our  law,  is  nowhere  laid  down  with  precision. 
In  the  Roman  law,  from  which  we  have  borrowed  the  term,  it  in- 
cluded not  only  forgery,  but  every  species  of  fraud  and  deceit.^ 
If  the  offence  did  not  fall  under  any  other  head,  it  was  called 
stellionatus,^  which  included  "  all  kinds  of  cozenage  and  knavish 
practice  in  bargaining."  But  it  is  clear,  that  the  common  law 
has  not  employed  the  term  in  this  extensive  sense,  when  applying 
it  to  the  disqualification  of  witnesses ;  because  convictions  for 
many  offences,  clearly  belonging  to  the  crimen  falsi  of  the  civil- 


1  2  Dods.  186,  per  Sir  Wm.  Scott. 

2  Phil.  &  Am.  on  Evid.  p.  17  ;  6  Com. 
Dig.  353,  Tesfmoigne,  A,  4,  5  ;  Co.  Lit.  6  b  ; 

•2  Hale,  P.  C.  277;  1  Stark.  Evid.  94, 
95.  A  conviction  for  petty  larceny  dis- 
qualifies, as  well  as  for  grand  larceny. 
Pendock  v.  Mackinder,  Willes,  665. 

3  Cod.  lib.  9,  tit.  22,  ad  legem  Come- 
liam  de  falsis.  Cujac.  Opera,  torn.  ix. 
in  locum.  (Ed.  Prati,  A.  D.  18-39, 4to,  pp. 
2191-2200 ;)  1  Brown's  Civ.  &  Adm.  Law, 
p.  525 ;  Dig.  lib.  48,  tit.  10 ;  Heinec.  in 
Pand.  pars  vii.  §  214-218.  The  crimen 
falsi,  as  recognized  in  the  Roman  law, 
might  be  committed,  1.  By  words,  as  in 
perjury;  2.  By  writing,  as  in  forgery; 
3.  By  act  or  deed ;  namely,  in  counter- 
feiting or  adulterating  the  public  money, 

—  in  fraudulently  substituting  one  cliild 
for  another,  or  a  supposititious  birtii,  —  or 
in  fraudulently  personating  another,  —  in 
using  false  weights  or  measures,  —  in  sell- 
ing or  mortgaging  the  same  thing  to  two 
several  persons,  in  two  several  contracts, 

—  and  in  officiously  supporting  the  suit 
of  another,  by  money,  &c.,  answering  to 
the  common-law  crime  of  maintenance. 
Wood,  Instit.  Civil  Law,  pp.  282,  283; 
Halifax,  Analysis  Rom.  Law,  p.  134.  The 
law  of  Normandy  disposed  of  the  whole 


subject  in  these  words :  "  Notandum  si- 
quidem  est,  quod  nemo  in  querela  sua  pro 
teste  recipiendus  est ;  nee  ejus  hteredes 
nee  participes  querelas.  El  hoc  intelligen- 
dum  est  tam  ex  parte  actoris,  quam  ex 
parte  defensoris.  Omnes  autera  illi,  qui 
perjurio  vel  Icesione  Jiclei  sunt  infames,  ob 
hoc  etiam  sunt  repellendi,  et  omnes  illi, 
qui  in  bello  succubuerunt."  Jura  Nor- 
nianise,  c.  62  [in  Le  Grand  Coustumier, 
fol.  edit.  1539].  In  the  ancient  Danish 
law  it  is  thus  defined,  in  the  chapter  enti- 
tled Falsi  crimen  qnndnam  censetiir.  "  Fal- 
sum  est,  si  terminum,  finesve  quis  moverit, 
monetam  nisi  venia  vel  mandato  regio 
cusserit,  argentum  adultcrinum  conflave- 
rit,  nummisve  reprobis  dolo  maio  emat 
vendatque,  vel  argento  adulterino."  An- 
cher.  Lex  Cimbrica,  lib.  3,  c.  65,  p.  249. 

*  Dig.  lib.  47,  tit.  20,  i.  3,  Cujac.  (in 
locum)  Opera,  torn.  ix.  (ed.  supra),  p. 
2224.  Stellionatus  nomine  significatur 
omne  crimen,  quod  nomen  proprium  non 
habet,  omnis  fraus,  quae  nomine  propno 
vacat.  Translatum  autem  esse  nomen 
stellionatus,  nemo  est  qui  nesciat,  ab  ani- 
mali  ad  hominem  vafrum,  et  decipiendi 
peritum.  Id.  Heinec.  ad  I'and.  pars  vii. 
§§  147,  148  ;  1  Brown's  Civ.  &  Adm.  Law, 
p.  426. 


430  LAW   OF   EVIDENCE.  [PART  IH. 

ians,  have  not  this  effect.  Of  this  sort  are  deceits  in  the  quality 
of  provisions,  deceits  by  false  weights  and  measures,  conspiracy 
to  defraud  by  spreading  false  news,^  and  several  others.  On  the 
other  hand,  it  has  been  adjudged  that  persons  are  rendered  in- 
famous, and  therefore  incompetent  to  testify,  by  having  been  con- 
victed of  forgery,^  perjury,  subornation  of  perjury,^  suppression 
of  testimony  by  bribery,  or  conspiracy  to  procure  the  absence  of  a 
"witness,*  or  other  conspiracy,  to  accuse  one  of  a  crinie,^  and  bar- 
ratry.^ And  from  these  decisions,  it  may  be  deduced,  that  the 
crimen  falsi  of  the  common  law  not  only  involves  the  charge  of 
falsehood,  but  also  is  one  which  may  injuriously  affect  the  admin- 
istration of  justice,  by  the  introduction  of  falsehood  and  fraud. 
At  least  it  may  be  said,  in  the  language  of  Sir  William  Scott,' 
"  so  far  the  law  has  gone  affirmatively ;  and  it  is  not  for  me  to 
say  where  it  should  stop,  negatively." 

§  374.  Extent  and  effect  of  disability  of  infamy.  In  regard  to  the 
extent  and  effect  of  the  disability/  thus  created,  a  distinction  is  to 
be  observed  between  cases  in  which  the  person  disqualified  is  a 
party,  and  those  in  which  he  is  not.  In  cases  between  third  per- 
sons, his  testimony  is  universally  excluded.^  But  where  he  is  a 
party,  in  order  that  he  may  not  be  wholly  remediless,  he  may 
make  any  affidavit  necessary  to  his  exculpation  or  defence,  or  for 
relief  against  an  irregular  judgment,  or  the  like ;  ^  but  it  is  said 
that  his  affidavit  shall  not  be  read  to  support  a  criminal  charge.^^. 
If  he  was  one  of  the  subscribing  witnesses  to  a  deed,  will,  or  other 
instrument,  before  his  conviction,  his  handwriting  may  be  proved 
as  though  he  were  dead." 

1  The  Ville  de  Varsovie,  2  Dods.  174.  an  incompetent  witness.  Commonwealth 
But  see  Crowther  v.  Hopwood,  3  Stark,  v.  Dame,  8  Cush.  384].  If  a  statute  de- 
21.  clare  the  perpetrator  of  a  crime  "  infa- 

2  Rex  V.  Davis,  5  Mod.  74.  mous,"  this,   it  seems,  will  render  him 
8  Co.   Lit.   6  6;    6    Com.    Dig.    353,     incompetent  to  testify.     1  Gilb.  Evid.  by 

Testm.  A,  6.  LoflEt,  pp.  256,  257;  Co.  Lit.  6  b. 

*  Clancev'scase,  Fortesc.  208;Bushell  ^  2  Dods.  191.     See  also  2  Russ.  on 

V.  Barrett,  Ry.  &  M.  434.  Crimes,  592,  693. 

5  2  Hale,  P.  C.  277  ;  Hawk.  P.  C.  b.  2,  »  Even  where  it  is  merely  offered  as  an 
c.  40,  §  101 ;  Co.  Lit.  6  h;  Rex  v.  Prid-  affidavit  in  showinjj  cause  against  a  rule 
die,  2  Leach,  Cr.  Cas.  496;  Crowther  v.  calling  upon  the  party  to  answer,  it  will 
Hopwood,  .3  Stark.  21,  arg. ;  1  Stark,  be  rejected.  In  re  Sawyer,  2  Ad.  &  EI. 
Evid.  95  ;  2  Dods.  191.  n.  8.  721. 

6  Rex  V.  Ford,  2  Salk.  690 ;  Bull.  N.  P.  »  Davis  and  Carter's  case,2  Salk.  461 ; 
292.  The  receiver  of  stolen  goods  is  in-  Rex  v.  Gardiner,  2  Burr.  1117;  Atcheson 
competent  as  a  witness.  See  the  Trial  i;.  Evcritt,  Cowp.  382;  Skinner  v.  Porot, 
of  Abner  Rogers,  pp.  136,  137  [Common-  1  Ashm.  67. 

wealth  V.  Rogers,  7  Met.  500.     A  person         lO  Walker  v.  Kearney,  2   Stra.  1148; 
convicted  of  maliciously  obstructing  the     Rex  v.  Gardiner,  2  Burr.  1117. 
passing  of  cars  on  a  railroad  is  not  thereby        ii  Jones  v.  Mason,  2  Stra.  833. 


CHAP,  n.]  COMPETENCY   OF   WITNESSES.  431 

§  375.  Infamy  proved  only  by  judgment.  We  have  already  re- 
marked, that  no  person  is  deemed  infamous  in  law,  until  he  has 
been  legally  found  guilty  of  an  infamous  crime.  But  the  mere 
verdict  of  the  jury  is  not  sufficient  for  this  purpose  ;  for  it  may 
be  set  aside,  or  the  judgment  may  be  arrested,  on  motion  for  that 
purpose.  It  is  the  judgment,  and  that  only,  which  is  received  as 
the  legal  and  conclusive  evidence  of  the  party's  guilt,  for  the 
purpose  of  rendering  him  incompetent  to  testify.^  And  it  must 
appear  that  the  judgment  was  rendered  by  a  court  of  competent 
jurisdiction.^  Judgment  of  outlawry,  for  treason  or  felony,  will 
have  the  same  effect ;  ^  for  the  party,  in  submitting  to  an  outlawry, 
virtually  confesses  his  guilt ;  and  so  the  record  is  equivalent  to 
a  judgment  upon  confession.  If  the  guilt  of  the  party  should  be 
shown  by  oral  evidence,  and  even  by  his  own  admission  (though  in 
neither  of  these  modes  can  it  be  proved,  if  the  evidence  be  ob- 
jected to),  or,  by  his  plea  of  "  guilty  "  which  has  not  been  fol- 
lowed by  a  judgment,^  the  proof  does  not  go  to  the  competency 
of  the  witness,  however  it  may  affect  his  credibility.^  And  the 
judgment  itself,  when  offered  against  his  admissibility,  can  be 
proved  only  by  the  record,  or,  in  proper  cases,  by  an  authenti- 
cated copy,  which  the  objector  must  offer  and  produce  at  the  time 
when  the  witness  is  about  to  be  sworn,  or  at  farthest  in  the 
course  of  the  trial.^ 

§  376.  Judgment  of  foreign  tribunal.  Whether  judgment  of  an 
infamous  crime,  passed  by  a  foreign  tribunal,  ought  to  be  allowed 
to  affect  the  competency  of  the  party  as  a  witness,  in  the  courts 
of  this  country,  is  a  question  upon  which  jurists  are  not  entirely 
agreed.  But  the  weight  of  modern  opinions  seems  to  be,  that 
personal  disqualifications,  not  arising  from  the  law  of  nature,  but 
from  the  positive  law  of  the  country,  and  especially  such  as  are  of 

1  6  Com.  Dig.  354,  Testm.  A,  5 ;  Rex  <  Reg.  v.  Hincks,  1  Denis.  Or.  Cas.  84, 
V.   Castel  Careinion,  8  East,  77;  Lee  v.  ^  Rex  r.  Castel  Careinion,  8  East,  77; 
Gansell,  Cowp.  3 ;  Bull.  N.  P.  292;  Fitch  "Wicks  v.  Smalbrook,  1  Sid.  51  ;  s.  c.  T. 
V.  Smalbrook,  T.  Ray.  32;  The  People  Ray.   32;    The    People    v.   Herrick,    13 
V.  Whipple,  9   Cowen,  707  ;  The  People  Johns.  82. 

r.    Herrick,   13  Johns.    82;  Cushman  v.  «  lb.;  Hilts  ?;.  Colven,  14  Johns.  182 

Luker,  2  Mass.  108 ;  Castellano  v.  Peil-  Commonwealth  v.   Green,  17  Mass.  537 

Ion,  2  Martin,  n.  s.  466.  In  The  State  v.  Ridgely,  2  Har.  &  McHen. 

2  Cooke  V.  Maxwell,  2  Stark.  183.  120,  and  Clark's  Lessee  v.  Hall,  Id.  378, 
8  Co.  Lit.  6  b ;  Hawk.  P.  C  b.  2,  c.  which  have  been  cited  to  the  contrary, 

48,  §22;  3  Inst.  212;  6   Com.  Dig.  354,  parol  evidence  was  admitted  to   prove 

Testm.  A,  6;  1  Stark.  Evid.  95,96.     In  only  the  fact  of  the  witness's  having  been 

Scotland,  it  is  otherwise.     Tait's   Evid.  transported  as   a  convict,  not  to  prove 

p.  347.  the  judgment  of  conviction. 


432 


LAW   OF  EVIDENCE. 


[PAET  ni. 


a  penal  nature,  are  strictly  territorial,  and  cannot  be  enforced  in 
any  country  otlier  than  that  in  which  they  originated. ^  Accord- 
ingly, it  has  been  held,  upon  great  consideration,  that  a  convic- 
tion and  sentence  for  a  felony  in  one  of  the  United  States  did  not 
render  the  party  incompetent  as  a  witness  in  the  courts  of  another 
State  ;  though  it  might  be  shown  in  diminution  of  the  credit  due 
to  his  testimony .2 

§  377.  How  this  disability  may  be  removed.  The  dlsahility  thus 
arising  from  infamy  may,  in  general,  be  removed  in  two  modes  : 
(1)  by  reversal  of  the  judgment ;  and  (2)  by  a  pardon.  The 
reversal  of  the  judgment  must  be  shown  in  the  same  manner  that 
the  judgment  itself  must  have  been  proved  ;  namely,  by  produc- 
tion of  the  record  of  reversal,  or,  in  proper  cases,  by  a  duly 
authenticated  exemplification  of  it.  The  pardon  must  be  j)roved, 
by  production  of  the  charter  of  pardon,  under  the  great  seal. 
And  though  it  were  granted  after  the  prisoner  had  suffered  the 
entire  punishment  awarded  against  him,  yet  it  has  been  held  suf- 
ficient to  restore  the  competency  of  the  witness,  though  he  would, 
in  such  case,  be  entitled  to  very  little  credit.^ 

§  378.  Pardon.  The  rule  that  a  pardon  restores  the  compe- 
tency and  completely  rehabilitates  the  party  is  limited  to  cases 
where  the  disability  is  a  consequence  of  the  judgment,  according 
to  the  principles  of  the  common  law.^  But  where  the  disability 
is  annexed  to  the  conviction  of  a  crime  by  the  express  words  of  a 


1  Story  on  Confl.  of  Laws,  §§  91,  02, 
104,  620-02.3 ;  Martens,  Law  of  Nations, 
b.  3,  c.  Z,  §§  24,  25. 

2  Commonwealth  v.  Green,  17  Mass. 
615,  589-549,  per  totani  Curiam  ;  contra, 
The  State  v.  Candk-r,  .3  Hawks,  393,  per 
Taylor,  C.  J.,  and  llender.son,  J. ;  Hall,  J., 
dubitanta,  but  inclining  in  favor  of  admit- 
ting the  witness.  In  the  cases  of  The 
State  V.  Ridgely,  2  Har.  &  McHen.  120, 
Clark's  Lessee  v.  Hall,  Id.  378,  and  Cole's 
Lessee  r.  Cole,  1  Har.  &  Johns.  572, 
which  are  sometimes  cited  in  tlie  nega- 
tive, this  point  was  not  raised  nor  con- 
sidi^red;  they  being  cases  of  persons 
Bentenced  in  England  for  felony,  and 
transported  to  Maryland  under  the  sen- 
tence prior  to  the  Revolution. 

3  The  UnitedStatesr.  Jones,  2  Wheel- 
er's Cr.  Cas.  451,  per  Tliompson,  J.  By 
Stat.  9  Geo.  IV.  c.  32,  §  3,  enduring  the 
punishment  to  which  an  offender  has 
been  sentenced  for  any  felony  not  pun- 
ishable with  death  has  tiie  same  effect  as 


a  pardon  under  tlie  great  seal,  for  the 
same  offence ;  and  of  course  it  removes 
the  disqualification  to  testify.  And  the 
same  effect  is  given  by  §  4  of  the  same 
statute,  to  the  endurance  of  the  punish- 
ment awarded  for  any  misdemeanor,  ex- 
cept perjury  and  subornation  of  perjury. 
See  also  1  \V.  IV.  c.  37,  to  the  same  ef- 
fect;  Tait  on  Evid.  pp.  34(3,  317.  But 
whether  these  enactments  have  i)ro- 
ceeded  on  the  ground,  that  the  incompe- 
tency is  in  the  nature  of  punishment,  or, 
that  the  offender  is  reformed  by  the  sal- 
utary discipline  he  has  undergone,  does 
not  clearly  appear. 

<  If  the  j)ard()nof  one  sentenced  to  the 
penitentiary  for  life  contains  a  proviso, 
that  nothing  therein  contained  shall  bo 
construed,  so  as  to  relieve  the  i).iriy  from 
the  legal  disabilities  consequent  upon  his 
sentence,  other  than  the  im[)risomnent, 
the  proviso  is  void,  and  the  party  is  fully 
rehabilitated.  The  People  v.  Tease,  3 
Joims.  Cas.  333. 


CHAP.  II.] 


COMPETENCY   OF   WITNESSES. 


433 


statute,  it  is  generally  agreed  that  the  pardon  will  not,  in  such 
a  case,  restore  the  competency  of  the  offender  ;  the  prerogative 
of  the  sovereign  being  controlled  by  the  authority  of  the  express 
law.  Thus,  if  a  man  be  adjudged  guilty  on  an  indictment  for 
perjury,  at  common  law,  a  pardon  will  restore  his  competency. 
But  if  the  indictment  be  founded  on  the  statute  of  5  Eliz.  c.  9, 
which  declares  that  no  person,  convicted  and  attainted  of  perjury 
or  subornation  of  perjury,  shall  be  from  thereforth  received  as 
a  witness  in  any  court  of  record,  he  will  not  be  rendered  compe- 
tent by  a  pardon.i 


1  Rex  I'.  Ford,  2  vSalk.  689 ;  Dover  v. 
Maestaer,  5  Esp.  92,  94;  2  Russ.  on 
Crimes,  595,  590 ;  Rex  v.  Grcepe,  2  Salk. 
513,  514;  Bull.  N.  P.  292;  Phil.  &  Am. 
on  Evid.  21,  22.  See  also  Mr.  Hargrave's 
Juridical  Arguments,  vol.  ii.  p.  221  elseq., 
where  this  topic  is  treated  with  great 
ability.  Whether  the  disability  is,  or  is 
not,  made  a  part  of  the  judgment,  and 
entered  as  such  on  the  record,  does  not 
seem  to  l>e  of  any  importance.  Tiie  form 
in  which  this  distinction  is  taken  in  the 
earlier  cases  evidently  shows  that  its 
force  was  understood  to  consist  in  this, 
that  in  the  former  case  the  disability  was 
declared  by  the  statute,  and  in  the  latter, 
that  it  stood  at  common  law.  "  Although 
the  incapacity  to  te.-tify,  especially  con- 
sidered as  a  mark  of  infamy,  may  really 
operate  as  a  severe  punishment  upon  the 
party  ;  yet  there  are  other  considerations 
affecting  other  persons,  which  may  well 
warrant  his  exclusion  from  the  halls  of 
justice.  It  is  not  consistent  with  the  in- 
terests of  others,  nor  with  the  protection 
which  is  due  to  them  from  the  .State,  that 
they  should  be  exposed  to  the  peril  of 
testimony  from  persons  regardless  of  the 
obligation  of  an  oath ;  and  hence,  on 
grounds  of  public  policy,  the  legislature 
may  well  require,  that  while  the  judgment 
itself  remains  unreversed,  the  party  con- 
victed shall  not  be  heard  as  a  witness.  It 
may  be  more  safe  to  exclude  in  all  cases, 
tiian  to  admit  in  all,  or  attempt  to  distin- 
guish by  Investigating  the  grounds  on 
which  the  pardon  may  have  been  granted. 
And  it  is  without  doubt  as  clearly  within 
the  power  of  the  legislature  to  modify 
the  law  of  evidence,  by  declaring  what 
manner  of  persons  shall  be  competent  to 
testify,  as  by  enacting,  as  in  the  Statute 
of  Frauds,  that  no  person  shall  be  heard 
vioa  voce  in  proof  of  a  certain  class  of  con- 
tracts. The  statute  of  Elizabeth  itself 
seems  to  place  the  exception  on  the 
ground  of  a  rule  of  evidence,  and  not  on 
VOL.  I.  28 


that  of  a  penal  fulmination  against  the 
offender.  The  intent  of  the  legislature 
appears  to  have  been  not  so  much  to 
punish  the  party,  by  depriving  him  of 
the  privilege  of  being  a  witness  or  a  juror, 
as  to  prohibit  the  courts  from  receiving 
the  oath  of  any  person  convicted  of  dis- 
regarding its  obligation.  And  whether 
this  consequence  of  the  conviction  be  en- 
tered on  the  record  or  not,  the  effect  is 
the  same.  The  judgment  under  the  stat- 
ute being  properly  shown  to  the  judges 
of  a  court  of  justice,  their  duty  is  de- 
clared in  the  statute,  independent  of  the 
insertion  of  the  inhibition  as  part  of  the 
sentence,  and  unaffected  by  any  subse- 
quent pardon.  The  legislature,  in  the 
exercise  of  its  power  to  punish  crime, 
awards  fine,  imprisonment,  and  the  pil- 
lory against  the  offender ;  in  the  dis- 
charge of  its  duty  to  preserve  the  temple 
of  justice  from  pollution,  it  repels  from 
its  portal  the  man  who  feareth  not  an 
oath.  Thus  it  appears  that  a  man  con- 
victed of  perjury  cannot  be  sworn  in  a 
court  of  justice,  while  the  judgment  re- 
mains unreversed,  though  his  offence 
may  have  been  pardoned  after  the  judg- 
ment; but  the  reason  is  found  in  the 
express  direction  of  the  statutes  to  the 
courts,  and  not  in  the  circumstances 
of  the  disability  being  made  a  part  of  the 
judgment.  The  pardon  exerts  its  full 
vigor  on  the  offender ;  but  is  not  allowed 
to  operate  beyond  this,  upon  the  rule  of 
evidence  enacted  by  the  statute.  The 
punishment  of  the  crime  belongs  to  the 
criminal  code ;  the  rule  of  evidence  to 
the  civil."  See  Amer.  Jur.  vol.  xi.  pp. 
360-302.  In  several  of  the  United  States, 
the  disqualification  is  expressly  declared 
by  statutes,  and  is  extended  to  all  the 
crimes  therein  enumerated  ;  comprehend- 
ing not  only  all  the  varieties  of  the  crimen 
falsi,  as  understood  in  the  common  law, 
but  divers  other  offences.  In  some  of 
the  States,  it  is  expressly  enacted,  that 


434  LAW   OF   EVIDENCE.  [PAET  HI. 

§  379.  Accomplices.  The  case  of  accomplices  is  usually  men- 
tioned under  the  head  of  Infamy ;  but  we  proj)ose  to  treat  it  more 
appropriately  when  we  come  to  speak  of  persons  disqualified  by 
interest,  since  accomplices  generally  testify  under  a  promise  or 
expectation  of  pardon  or  some  other  benefit.  But  it  may  here  be 
observed  that  it  is  a  settled  rule  of  evidence  that  a  particeps  crimi- 
nis,  notwithstanding  the  turpitude  of  his  conduct,  is  not,  on  that 
account,  an  incompetent  witness  so  long  as  he  remains  not  con- 
victed and  sentenced  for  an  infamous  crime.  The  admission  of 
accomplices,  as  witnesses  for  the  government,  is  justified  by  the 
necessity  of  the  case,  it  being  often  impossible  to  bring  the  prin- 
cipal offenders  to  justice  Avithout  them.  The  usual  course  is,  to 
leave  out  of  the  indictment  those  who  are  to  be  called  as  wit- 
nesses ;  but  it  makes  no  difference  as  to  the  admissibility  of  an 
accomplice,  whether  he  is  indicted  or  not,  if  he  has  not  been  put 
on  his  trial  at  the  same  time  with  his  companions  in  crime. ^  He 
is  also  a  competent  witness  in  their  favor;  and  if  he  is  put  on  his 
trial  at  the  same  time  with  them,  and  there  is  only  very  slight 
evidence,  if  any  at  all,  against  him,  the  court  may,  as  we  have 
already  seen,^  and  generally  will,  forthwith  direct  a  separate  ver- 
dict as  to  him,  and,  upon  liis  acquittal,  will  admit  him  as  a  wit- 
ness for  the  others.  If  he  is  convicted,  and  the  punishment  is 
by  fine  only,  he  will  be  admitted  for  the  others,  if  he  has  paid  the 
fine.^  But  whether  an  accomplice  already  charged  with  the  crime, 
by  indictment,  shall  be  admitted  as  a  witness  for  the  government, 
or  not,  is  determined  by  the  judges,  in  their  discretion,  as  may 
best  serve  the  purpose  of  justice.  If  he  appears  to  have  been  the 
principal  offender,  he  will  be  rejected.*  And  if  an  accomplice, 
having  made  a  private  confession,  upon  a  promise  of  pardon  made 

the  pardon  of  one  convicted  of  perjury  nock's   case,  4  St.  Tr.  582  (ed.  1730) ; 

shall  not  restore  liis  competency  as  a  wit-  s.  c.   V2  Howell's  St.   Tr.   1454;  Rex  v. 

ness.     See  Virrjinia,  Uev.   Stat.   184'J,  c.  Fletcher,    1   Stra.  033.     The  rule   of  the 

199,  §  10 ;  Flovidn,   Thompson's  Dig.  p.  Roman  law,  "  Nemo,  allegans  turpitudi- 

334  ;    (jforqin,    Ilotchkiss's    Dig.   j).   730.  nem  suani,  est  audicndus,"   though  for- 

But  in   0/)/o,  comijftcncy  is  restored  hy  merly  api)lied  to  witnesses,  is  now  to  tliat 

pardon.     Uev.    Stat.    1841,    c.    35,   §  41.  extent  exploded.     It  can  only  be  ai)pliea, 

In  Gcoif/ia,  convicts  in  the  penitentiary  at  this  day,  to  the  case  of  a  part}'  seck- 

are  competent  to  prove  an  escape,  or  a  ing  relief.     See  infra,  §  383,  n.     See  also 

mutiny.     Ilotchk.  Dig.  supra.     And  see  2  Stark.  Evid.  0,  10;  2  Hale,  P.  C.  280; 

New  Jcrsri/,  Rev.  Stat.  1840,  tit.  8,  c.  1,  7   T.  ]{.  Oil;  Musson   t'.  Fales,  10  Mass. 

§2;];  Id.  tit.  34,  c.  9,  §  1.  335;  Churchill   v.    Suter,   2  Mass.    162; 

1  See  Jones  v.  Georgia,  1  Kelly,  610.  Townsend   v.   Bush,   1    Conn.   267,  per 

■•i  Siiprn.,  §  302.  Trumbull,  J. 

3  2  Russ.  on  Crimes,  507,  600 ;  Rex  v.  *  The   People  v.  Wliipplc,  9  Cowen, 

Westbeer,  1  Leach,  Cr.  Cas.  14 ;  Char-  707 ;  su^jra,  §  303. 


OHAP.  n.]  COMPETENCY   OF   "VTITNESSES.  435 

by  the  attorney-general,  should  afterwards  refuse  to  testify,  he 
may  be  convicted  upon  the  evidence  of  that  confession.^ 

§  380.  How  far  credible.  The  degree  of  credit  which  ought  to 
be  given  to  the  testimony  of  an  accomplice  is  a  matter  exclusively 
within  the  province  of  the  jury.  It  has  sometimes  been  said  that 
they  ought  not  to  believe  him,  unless  his  testimony  is  corroborated 
by  other  evidence  ;  and,  without  doubt,  great  caution  in  weighing 
such  testimony  is  dictated  by  prudence  and  good  reason.  But 
there  is  no  such  rule  of  law ;  it  being  expressly  conceded  that  the 
jury  may,  if  they  please,  act  upon  the  evidence  of  the  accomplice, 
without  any  confirmation  of  his  statement.^  But,  on  the  other 
hand,  judges,  in  their  discretion,  v/ill  advise  a  jury  not  to  convict 
of  felony  upon  the  testimony  of  an  accomplice  alone  and  without 
corroboration  ;  and  it  is  now  so  generally  the  practice  to  give 
them  such  advice,  that  its  omission  would  be  regarded  as  an 
omission  of  duty  on  the  part  of  the  judge.^  And,  considering  the 
respect  always  paid  by  the  jury  to  tliis  advice  from  the  bench,  it 
may  be  regarded  as  the  settled  course  of  practice,  not  to  convict 
a  prisoner  in  anj^  case  of  felony  upon  the  sole  and  uncorroborated 
testimony  of  an  accomplice.  The  judges  do  not,  in  such  cases, 
withdraw  the  cause  from  the  jury  by  positive  directions  to  acquit, 
but  only  advise  them  not  to  give  credit  to  the  testimony. 

§  381.  "What  corroboration  requisite.  But  though  it  is  thus  the 
settled  practice,  in  cases  of  felony,  to  require  other  evidence  in 
corroboration  of  that  of  an  accomplice,  yet,  in  regard  to  the 
manner  and  extent  of  the  corroboration  to  be  required,  learned 
judges  are  not  perfectly  agreed.    Some  have  deemed  it  sufficient, 

1  Commonwealth  v.  Knapp,  10  Pick,  character  or  position  in  a  cause,  should 

477  ;  Rex   v.  Burley,  2  Stark.  Evid.  12,  not  be  arbitrarily  determined  in  advance 

n.  (?•)   [Keg.  V.  Berigan,  1  Ir.  Cir.  177  ;  of  liis  testimony,  and  in  ignorance  of  the 

Rex  V.  Dingley,  1  C.  &  K.  640.]  circumstances   affecting    its    credibility. 

-  Rex  V.  Hastings,  7  C.  &  P.  152,  per  State  v.  Litchfield,  58  Maine,  267,  Apple- 

Ld.   Dennian,   C.   J. ;    Rex   v.   Jones,   2  ton,  C.  J] 

Campb.  132,  per  Ld.  Ellenborough ;  s.  c.  ^  Roscoe's  Crim.  Evid.  p.  120 ;  2  Stark. 

31  Howell's  St.  Tr.  315;  Rex  v.  Atwood,  Evid.  12;  Rex  v.  Barnard,  1  C.  &  P.  87. 

2  Leach,  Or.  Cas.  521 ;  Rex  v.  Durham,  For   the   limitation   of   this   practice   to 

Id.  528;    Rex  v.  Dawber,  3  Stark.  34;  cases   of  felony,  see    Rex   v.   Jones,   31 

Rex  V.  Barnard,  1  C.  &  P.  87,  88 ;  The  Howell's  St.  Tr.  315,  per  Gibbs,  Attor.- 

People  V.  Costello,  1  Denio  (N.  Y.),  83.  Gen.,  arg.     See  also  Rex  r.  Hargrave,  5 

[Whether  a  witness  is  an  accomplice  is  a  C.  &  P.  170,  where  persons  present  at  a 

question  for  the  jury.     Com.  v.  Glover,  fight,  which  resulted    in   manslaughter, 

111  Mass.  395.     There  is  no  rule  of  law  though  principals  in  the  second  degree, 

that  juries  may  not  convict  upon  the  tes-  were  held  not  to  be  such  accomplices  as 

timony  of  an  accomplice.     There  should  required  corroboration,  when  testifying 

be  none  such.    The  degree  of  credit  to  be  as  witnesses, 
given  to  a  witness,  whatever  may  be  his 


486 


LAW   OF  EVIDENCE. 


[pAUT  nr. 


if  the  witness  is  confirmed  in  any  material  part  of  the  case ;  ^ 
others  have  required  confirmatory  evidence  as  to  the  corpus  delicti 
only ;  and  others  have  thought  it  essential  that  there  should  be 
corroborating  proof  that  the  prisoner  actually  participated  in  the 
offence  ;  and  that,  when  several  prisoners  are  to  be  tried,  confir- 
mation is  to  be  required  as  to  all  of  them  before  all  can  be  safely 
convicted  ;  the  confirmation  of  the  witness,  as  to  the  commission 
of  the  crime,  being  regarded  as  no  confirmation  at  all,  as  it 
respects  the  prisoner.  For,  in  describing  the  circumstances  of 
the  offence,  he  may  have  no  inducement  to  speak  falsely,  but 
may  have  every  motive  to  declare  the  truth,  if  he  intends  to  be 
believed,  when  he  afterwards  fixes  the  crime  upon  the  prisoner.^ 


1  This  is  the  rule  in  Massachusetts, 
where  the  law  was  stated  by  Morton,  J., 
as  follows:  "1.  It  is  competent  for  a  jury 
to  convict  on  the  testimony  of  an  accom- 
plice alone.  The  principle  which  allows 
the  evidence  to  go  to  tlie  jury,  necessarily 
involves  in  it  a  power  in  them  to  believe 
it.  The  defendant  has  a  right  to  have  the 
jury  decide  upon  the  evidence  which  may 
be  offered  against  him;  and  their  duty 
will  require  of  them  to  return  a  verdict 
of  guilty  or  not  guilty,  according  to  the 
conviction  which  that  evidence  shall  pro- 
duce in  their  minds.  2  Hawk.  P.  C.  c  4(5, 
§  135 ;  1  Hale,  P.  C.  304,  305 ;  Koscoe's 
Crim.  Ev.  119;  1  Phil.  Ev.  32;  2  Stark. 
Ev.  18,  20.  2.  But  the  source  of  this  evi- 
dence is  so  corrupt,  that  it  is  always 
looked  upon  with  suspicion  and  jealousy, 
and  is  deemed  unsafe  to  rely  upon  with- 
out confirmation.  Hence  the  court  ever 
consider  it  their  duty  to  advise  a  jury  to 
acquit,  where  there  is  no  evidence  other 
than  the  uncorroborated  testimony  of  an 
accomplice.  1  Pliil.  Evid.  34;  2  Stark. 
Evid.  24;  Rex  v.  Durham,  2  Leach,  528; 
Kex  V.  Jones,  2  Campb.  132;  1  Wheeler's 
Crim.  Cas.  418;  2  Rogers's  Recorder,  38  ; 
5  Id.  05.  3.  The  mode  of  corroboration 
^eems  to  be  less  certain.  It  is  perfectly 
clear,  that  it  need  not  extend  to  the  whole 
testimony ;  but  it  being  shown  that  the 
acooin]>licc  has  testified  truly  in  some 
particulars,  the  jury  may  infer  tliat  he 
has  iu  others.  Hut  wliat  amounts  to  cor- 
roboration? We  think  the  rule  is,  that 
the  corroborative  evidence  must  relate  to 
some  portion  of  the  testimony  which  is 
material  to  the  issue.  To  ])rove  that  an 
accom))lice  had  told  the  truth  in  relation 
to  irrelevant  and  immaterial  matters, 
which  were  known  to  everybody,  would 
have  no  tendency  to  confirm  his  testi- 
mony, involving  the  guilt  of  the  party  on 


trial.  If  this  were  the  case,  every  wit- 
ness, not  incompetent  for  the  want  of 
understanding,  could  always  furnish  ma- 
terials for  the  corroboration  of  his  own 
testimony.  If  he  could  state  where  he 
was  born,  where  he  had  resided,  in  whose 
custody  he  had  been,  or  in  what  jail,  or 
what  room  in  the  jail,  he  had  been  con- 
fined, he  might  easily  get  confirmation 
of  all  these  particulars.  But  tliese  cir- 
cumstances having  no  necessary  connec- 
tion with  the  guilt  of  the  defendant,  the 
proof  of  the  correctness  of  the  statement 
in  relation  to  them  would  not  conduce  to 
prove  that  a  statement  of  the  guilt  of  the 
defendant  was  true.  Roscoe's  Crim. 
Evid.  120;  Rex  v.  Addis,  0  Car.  &  Payne, 
388."  See  Commonwealth  v.  Bosworth, 
22  Pick.  397,  309,  400;  The  People  v. 
Costello,  1  Denio,  83.  A  similar  view  of 
the  nature  of  corroborative  evidence,  in 
cases  where  such  evidence  is  necessary, 
was  taken  by  Dr.  Lushington,  who  held 
that  it  meant  evidence,  not  merely  show- 
ing that  the  account  given  is  probable, 
but  proving  facts  cjusdnn  cjewris,  and 
tending  to  produce  the  same  result.  Sim- 
mons r.  Simmons,  11  Jur.  830.  And  see 
Maddock  v.  Sullivan,  2  Rich.  Eq.  4. 

2  Rex  V.  Wilkes,  7  C.  &  P.  272,  per 
Alderson,  B. ;  Ilex  v.  Moore,  Id.  270-, 
Rex  V.  Addis,  6  C.  &  P.  388,  per  Patte- 
son,  J. ;  Rex  v.  Wells,  1  Mood.  &  M.  326, 
per  Littledale,  J. ;  Rex  v.  Webb,  G  C.  & 
P.  595;  Reg.  v.  Dyke,  8  C.  &  P.  261; 
Reg.  V.  Hirkett,  8  C.  &  P  732;  Common- 
wealth V.  Bosworth,  22  Pick.  39'.),  per 
Morton,  J.  The  com-se  of  oi)iuions  and 
practice  on  this  subject  is  stated  more  at 
large  in  1  Phil.  Evid.  pp.  .30-38;  2  Huss. 
on  Crimes,  pp.  9515-9(58,  and  in  2  Stark. 
Evid.  p  12,  n.  (t),  to  which  the  learned 
reader  is  referred.  See  also  Roscoe's 
Crim.  Evid.  p.  120.      Chief  Baron  J07 


CHAP,  n.] 


COMPETENCY  OF   WITNESSES. 


437 


If  two  or  more  accomplices  are  produced  as  witnesses,  they  are 
not  deemed  to  corroborate  each  other;  but  the  same  .rule  is 
applied,  and  the  same  confirmation  is  required,  as  if  there  were 
but  one.* 

§  382.  Apparent  accomplices.  There  is  one  class  of  persons 
ap^mrently  accomplices^  to  whom  the  rule  requiring  corroborating 
evidence  does  not  apply ;  namely,  persons  who  have  entered  into 
communication  with  conspirators,  but  either  afterwards  repent- 
ing, or,  having  originally  determined  to  frustrate  the  enterprise, 
have  subsequently  disclosed  the  conspiracy  to  the  public  author- 
ities, under  whose  direction  they  continue  to  act  with  their  guilty 
confederates  until  the  matter  can  be  so  far  advanced  and  matured, 
so  as  to  insure  their  conviction  and  punishment.  The  early  dis- 
closure is  considered  as  binding  the  party  to  his  duty ;  and  though 
a  great  degree  of  objection  or  disfavor  may  attach  to  him  for  the 
part  he  has  acted  as  an  informer^  or  on  other  accounts,  yet  his  case 
is  not  treated  as  the  case  of  an  accomplice.^ 


after  an  elaborate  examination  of  English 
authorities,  states  the  true  rule  to  be  this, 
that  "  the  confirmation  ought  to  be  in 
such  and  so  many  parts  of  tlie  accom- 
plice's narrative,  as  may  reasonably  sat- 
isfy the  jury  that  he  is  telling  truth, 
without  restricting  the  confirmation  to 
any  particular  points,  and  leaving  the 
effect  of  such  confirmation  (which  may 
vary  in  its  effect  according  to  the  nature 
and  circumstances  of  the  particular  case) 
to  the  consideration  of  the  jury,  aided  in 
that  consideration  by  the  observations  of 
the  judge."  See  Joy  on  the  Evidence  of 
Accomplices,  pp.  98,  99.  By  the  Scotch 
law,  the  evidence  of  a  single  witness  is  in 
no  case  sufficient  to  warrant  a  conviction, 
unless  supported  by  a  train  of  circum- 
stances. Alison's  Practice,  p.  551.  In 
Iowa,  it  is  required  by  statute,  that  the 
corroboration  be  such  as  shall  tend  to 
connect  the  defendant  with  the  commis- 
sion of  the  offence ;  and  not  merely  to 
show  the  commission  of  the  crime,  or  its 
circumstances.     Code  of  1851,  art.  2998. 

1  Rex  V.  Noakes,  3  V-  &  P.  326.  per 
Littledale,  J. ;  Reg.  i'.  Bannen.  2  Mood. 
Cr.  Cas.  309.  The  testimony  of  the  wife 
of  an  accomplice  is  not  considered  as  cor- 
roborative of  her  husband.  Rex  v.  Neale, 
7  C.  &  P.  168,  per  Park,  J. 

2  Rex  V.  Despard,  12  Howell's  St.  Tr. 
489,  per  Lord  I^Uenborougli.  [This  para- 
graph about  disfavor,  and  in  fact  the 
whole  section,  is  taken  from  Lord  Ellen- 
borough's  charge  in  Rex  v.  Despard,  and, 


whether  called  for  or  not  in  this  case, 
which  does  not  appear,  is  wholly  inap- 
propriate as  a  general  observation  apply- 
ing to  all  who  so  aid  in  ferreting  out 
villains.  One  who  purchases  intoxicat- 
ing liquor  sold  contrary  to  law,  for  the 
express  purpose  of  prosecuting  the  seller 
for  an  unlawful  sale,  is  not  an  accom- 
plice. Commonwealth  v.  Downing,  4 
Gray,  29.  One  who  enters  into  cunmiu- 
nication  with  criminals,  and,  without  a 
criminal  intent,  advises  or  aids  them  in 
the  commission  of  crime,  but  tor  the 
sole  purpose  of  detecting  the  criminals, 
wiiether  a  public  officer  or  a  private 
citizen,  is  not  an  accomplice.  State  v. 
McKean,  36  Iowa,  343.  Nor  is  the 
woman  upon  whom  an  abortion  is  pro- 
cured. To  be  an  accomplice,  one  must  be 
indictable  as  a  participator  in  the  offence. 
Com.  V.  Wood,  11  Gray  (Mass.),  85;  Com. 
V.  Boynton,  116  Mass.  343.  The  practice 
of  caution  from  the  bench  is  not  so  uni- 
form in  the  case  of  misdemeanors  as  in 
felonies,  though  the  distinction  is  rather 
one  of  degree  than  of  kind.  Rex  v.  Far- 
ler,  8  C.  &  P.  106;  and  the  extent  of  cor- 
roboration, it  has  been  said,  will  depend 
much  upon  the  nature  of  the  crime,  Rex 
V.  Jarvis,  2  M.  &  R.  40 ;  and  if  the  of- 
fence be  a  statute  one,  as  the  non-repair 
of  a  highway ;  or  involve  no  great  moral 
delinquency,  as  being  present  at  a  prize- 
fiijlu  which  terminated  in  manslaughter, 
R'ex  V.  Hargrave,  5  C.  &  P.  170 ;  Reg.  v. 
Young,  10  Cox,  371;  or  the  action  be  for 


438  LAW   OF   EVIDENCE.  [PAET  m. 

§  383.  Parties  may  testify  to  their  own  fraud.  Whether  a  party 
to  a  negotiable  instrument^  who  has  given  it  credit  and  currency  by 
his  sisrnature,  shall  afterwards  be  admitted  as  a  witness,  in  a  suit 
between  other  persons,  to  prove  the  instrument  originally  void,  is 
a  question  upon  which  judges  have  been  much  divided  in  opin- 
ion. The  leading  case  against  the  admissibility  of  the  witness  is 
that  of  Walton  v.  Shelley,^  in  which  the  indorser  of  a  promissory 
note  was  called  to  prove  it  void  for  usury  in  its  original  concoc- 
tion. The  security  was  in  the  hands  of  an  innocent  holder.  Lord 
Mansfield  and  the  other  learned  judges  held  that  upon  general 
grounds  of  public  policy  the  witness  was  inadmissible  ;  it  being 
"of  consequence  to  mankind  that  no  person  should  hang  out  false 
colors  to  deceive  them,  by  first  affixing  his  signature  to  a  paper, 
and  then  afterwards  giving  testimony  to  invalidate  it."  And,  in 
corroboration  of  this  opinion,  they  referred  to  the  spirit  of  that 
maxim  of  the  Roman  law,  "  Nemo,  allegans  suam  turpitudinem, 
est  audiendus."  ^ 

§  384.  Same  subject.  The  doctrine  of  tliis  case  afterwards  came 
under  discussion  in  the  equally  celebrated  case  of  Jordaine  v. 
Lashbrooke.3  This  was  an  action  by  the  indorsee  of  a  bill  of 
exchange  against  the  acceptor.  The  bill  bore  date  at  Hamburg ; 
and  the  defence  was,  that  it  was  drawn  in  London,  and  so  was 
void  at  its  creation,  for  Avant  of  a  stamp,  the  statute*  having 
declared  that  unstamped  bills  should  neither  be  pleaded,  given 
in  evidence,  nor  allowed  to  be  available  in  law  or  equity.  The 
indorser  was  offered  by  the  defendant  as  a  witness  to  prove  this 
fact,  and  the  court  held  that  he  was  admissible.  This  case  might, 
perhaps,  have  formed  an  exception  to  the  general  rule  adopted  in 
Walton  V.  Shelley,  on  the  ground  that  the  general  policy  of  the 

a  penalty, — the  caution  has  been  refused,  see  4  Inst.  279.      It  seems  formerly  to 

McChirg  V.  Wright,  10  Ir.  Law,  n.  8.  514;  have  been  deemed  sufficient  to  exclude 

Morgan  v.  Mark,  11  Id.  449.]  witnesses,  testifying  to  their  own  turpi- 

1  1  T.  R.  296.  tude  ;  but  the  objection  is  now  held  to 

2  This  maxim,  though  it  is  said  not  to  go  only  to  the  credibility  of  the  testi- 
bo  expressed,  in  terms,  in  the  text  of  the  mony.  2  Stark.  Evid.  9,  10;  2  Hale, 
Corpus  Juris  (see  Gilmer's  Itep.  p.  275,  n.),  P.  C.  280;  7  T.  R.  609,  per  Grose,  J.; 
is  exceedingly  familiar  among  the  civ-  Id.  Gil,  per  Lawrence,  J.  Tims,  a  wit- 
ilians ;  and  is  found  in  their  commenta-  ness  is  competent  to  testify  that  his  for- 
ries  on  various  laws  in  the  Code.  See  mer  oath  was  corruptly  false.  Rex  v. 
Corpus  Juris  Glossatum,  tom.  iv.  col.  461,  Teal,  11  East,  309;  Rands  v.  Thomas,  6 
1799;  Corp.  Juris  Gothofredi  (fol.  ed.),  M.  &  S.  244. 

Cod.  lib.  7,  tit.  8,  1.  5.  in  margine;  Codex  3  7  T.  R.  599. 

Justiniani  (4to,  Parisiis,  1550),  lib.  7,  tit.  *  31  Geo.  IIL  c.  25,  §§  2,  16.     This 

10,  1.    1;    Id.  tit.  8,  1.  5,  in  margine;  1  act  was  passed  subsequent  to  the  decision 

Mascard.  De  Prob.  Concl.  78,  n.  42.   And  of  Walton  v.  SheUey,  1  T.  R.  296. 


CHAP,  n.]  COMPETENCY   OF  WITNESSES.  439 

law  of  commerce  ought  to  yield  to  the  public  necessity  in  matters 
of  revenue  ;  and  this  necessity  was  relied  upon  by  two  of  the 
three  learned  judges  who  concurred  in  the  decision.  But  they 
also  concurred  with  Lord  Kenyon  in  reviewing  and  overruling 
the  doctrine  of  that  case.  The  rule,  therefore,  now  received  in 
England  is,  that  the  party  to  any  instrument,  whether  negotiable 
or  not,  is  a  competent  witness  to  prove  any  fact  to  which  any 
other  witness  would  be  competent  to  testify,  provided  he  is  not 
shown  to  be  legally  infamous,  and  is  not  directly  interested  in  the 
event  of  the  suit.  The  objection,  that  thereby  he  asserts  that  to 
be  false  which  he  has  solemnly  attested  or  held  out  to  the  world 
as  true,  goes  only  to  his  credibility  with  the  jury.^ 

§  385.  Rule  in  the  United  States  not  uniform.  The  COUrts  of 
some  of  the  American  States  have  adopted  the  later  English  rule, 
and  admitted  the  indorser,  or  other  party  to  an  instrument,  as  a 
competent  witness  to  impeach  it  in  all  cases  where  he  is  not  on 
other  grounds  disqualified.  In  other  States,  decisions  are  found 
which  go  to  the  exclusion  of  the  party  to  an  instrument  in  every 
case,  when  offered  as  a  witness  to  defeat  it,  in  the  hands  of  a  third 
person  ;  thus  importing  into  the  Law  of  Evidence  the  maxim  of 
the  Roman  law  in  its  broadest  extent.  In  other  States,  the 
courts,  referring  the  rule  of  exclusion  to  the  ground  of  public 
convenience,  have  restricted  its  application  to  the  case  of  a  nego- 
tiable security  actually  negotiated  and  put  into  circulation  before 
its  maturity,  and  still  in  the  hands  of  an  innocent  indorsee,  with- 
out notice  of  the  alleged  original  infirmity,  or  any  other  defect  in 
the  contract.  And  in  this  case  the  weight  of  American  authority 
may  now  be  considered  as  against  the  admissibility  of  the  witness 
to  impeach  the  original  validity  of  the  security;  although  the  con- 
trary is  still  holden  in  some  courts,  whose  decisions,  in  general, 
are  received  with  the  highest  respect.^ 

1  1  Phil.  Evid.  39,  40.  On  this  ground,  Henley,  4  Mass.  441.  It  has,  however, 
parties  to  other  instruments,  as  well  as  been  held  in  Louisiana,  that  a  notary- 
subscribing  witnesses,  if  not  under  some  cannot  be  examined  as  a  witness,  to  con- 
other  disability,  are,  both  in  England  and  tradict  a  statement  made  by  him  in  a 
in  the  United  "States, held  admissible  wit-  protest;  and  that  tlie  principle  extends 
nesses  to  impeach  the  original  validity  of  to  every  public  officer,  in  regard  to  a 
Buch  instruments.  7  T.  R.  611,  per  Law-  certificate  given  by  him  in  his  official 
rence,  J.;  Reward  v.  Shipley,  4  East,  180;  character.  Peet  v.  Dougherty,  7  Rob.  85. 
Lowe  V.  JoJiffe,  1  W.  Bl.  365  ;  Austin  v.  2  The  rule,  that  the  indorser  of  a  nego- 
Willes,  Bull.  N.  P.  264  ;  Howard  v.  tiable  security,  negotiated  before  it  was 
Braithwaite,  1  Ves.  &  B.  202,  208;  Title  due,  is  not  admissible  as  a  witness  to  prove 
V.  Grevett,  2  Ld.  Raym.  1008 ;  Dickinson  it  originally  void,  when  in  the  hands  of  an 
V.  Dickinson,  9  Met.  471 ;   Twambly  v.  innocent  indorsee,  is  sustained  by  the  Su- 


440 


LAW   OF  EVIDENCE. 


[part  hi. 


§  386.    Disqualification   by  interest  in  the  result.      Another  class 
of  persons  incompetent  to  testify  in  a  cause  consists  of  those  who 


preme  Court  of  the  United  States,  in  The 
Bank  of  the  United  States  v.  Dunn,  6 
Peters,  51,  57,  explained  and  confirmed 
in  The  Bank  of  tiie  Metropolis  v.  Jones, 
8  Peters,  12,  and  in  the  United  States  v. 
Leffler,  11  Peters,  80,  94,  95;  Scott  v. 
Lloyd,  12  Peters,  149;  Henderson  v. 
Anderson,  3  Howard,  S.  C.  73  [Salt- 
marsh  /'.  Tuthill,  13  How.  (U.  S.)  229]  ; 
Taylor  v.  Luther,  2  Sumner,  235,  per 
Story,  J.  It  was  also  adopted  in  Massa- 
c/nisetts,  Churchill  v.  Suter,  4  Mass.  156 ; 
Fox  V.  Whitney,  16  Mass.  118;  Packard 
V.  Kichardson,  17  Mass.  122.  See  also  the 
case  of  Thayer  c.  Crossman,  1  Metcalf, 
416,  in  which  the  decisions  are  reviewed, 
and  the  rule  clearly  stated  and  vindicated, 
by  Shaw,  C.  J.  And  in  New  Hampshire, 
Bryant  v.  Rittersbush,  2  N.  H.  212;  Had- 
dock V.  Wilmarth,  5  N.  H.  187.  And  in 
Maine,  Deering  v.  Sawtel,  4  Greenl.  191 ; 
Chandler  v.  Morton,  4  Greenl.  374.  And 
in  Pennsijloaiiia,  O'Brien  v.  Davis,  6 
Watts,  498  ;  Harrisburg  Bank  v.  Forster, 
8  Watts,  304,  309;  Davenport  v.  Free- 
man, 8  Watts  &  Serg.  557  [Harding  v. 
Mott,  20  Penn.  469;  Pennypacker  v.  Um- 
bergcr,  22  Id.  492],  In  Louisiana,  the 
rule  was  stated  and  conceded  by  Por- 
ter, J.,  in  Shamburg  v.  Commagere,  10 
Martin,  18 ;  and  was  again  stated,  but  an 
opinion  withheld,  by  Martin,  J.,  in  Cox 
V.  Williams,  5  Martin,  n.  s.  139.  In  Ver- 
mont, the  case  of  Jordaine  v.  Lashbrooke 
was  followed,  in  Nichols  r.  Holgate,  2  Aik. 
138 ;  but  the  decision  is  said  to  have 
been  subsequently  disapproved  by  all  the 
judges,  in  Chandler  v.  Mason,  2  Vt.  198, 
and  the  rule  in  Walton  v.  Shelley  ap- 
proved. [In  a  later  case,  the  question 
came  directly  before  the  court,  and  the 
decision  in  Nichols  v.  Holgate  was  con- 
firmed. Pecker  v.  Sawyer,  24  Vt.  459.] 
In  O/i/ojtheindorser  was  admitted  to  prove 
facts  snltseqnent  to  the  indorsement ;  the 
court  expressing  no  opinion  upon  the  gen- 
eral rule,  though  it  was  relied  upon  by 
the  opposing  counsel.  Stone  v.  Vance,  6 
Ohio,  246.  But  subsequently  the  rule 
seems  to  have  been  admitted.  Rohrer  v. 
Morningstar,  18  < )hio,  579.  In  Mississippi, 
tiie  witness  was  admitted  for  the  same 
purpose  ;  and  the  rule  in  Walton  v.  Shel- 
ley was  approved.  Drake  v.  Hejiley, 
Walker,  641.  In  Illinois,  the  indorser 
has  been  admitted,  where,  in  taking  the 
notf>,  he  acted  as  the  agent  of  the  indorsee, 
to  whom  he  immediately  transferred  It, 
without  any  notice  of  the  rule.  Webster 
V.  Vickers,  2  Scam.  295.  But  the  rule  of 
exclusion  has  been  rejected,  and  the  gen- 


eral doctrine  of  Jordaine  v.  Lashbrooke 
followed  in  New  York,  Stafford  v.  Rice,  5 
Cowen,  23 ;  Bank  of  Utica  v.  Hilliard,  Id. 
153;  Williams  v.  Walbridge,  3  Wend.  415. 
And  in  Virginia,  Taylor  v.  Beck,  3  Ran- 
dolph, 316.  And  in  Connecticut,  Town- 
send  V.  Bush,  1  Conn.  260.  And  in  South 
Carolina,  Knight  v.  Packard,  3  McCord, 
71.  [And  in  Texas,  Parsons  v.  Phipps,  4 
Tex.  341.]  And  in  Tennessee,  Stump  t\ 
Napier,  2  Yerger,  35.  In  Maryland,  it 
was  rejected  by  three  judges  against  two 
in  Ringgold  v.  Tyson.  3  H.  &  J.  1?2.  It 
was  also  rejected  in  Neiv  Jersey,  in  Free- 
man V.  Brittin,  2  Harrison,  192.  And  in 
North  Carolina,  Guy  v.  Hall,  3  Murphy, 
151.  And  in  Georgia,  Slack  v.  Moss, 
Dudley,  161.  And  in  Alabama,  Todd  v. 
Stafford,  1  Stew.  199 ;  Griffing  v.  Harris, 
9  Porter,  226.  In  Kentucky,  in  the  case 
of  Gorham  v.  Carroll,  3  Littell,  221,  where 
the  indorser  was  admitted  as  a  witness, 
it  is  to  be  observed,  that  the  note  was 
indorsed  without  recourse  to  him,  and 
thereby  marked  with  suspicion;  and  that 
the  general  rule  was  not  considered. 
More  recently  in  New  Hampshire,  the 
doctrine  of  Walton  v.  Slielley  has  been 
denied,  and  the  rule  of  the  Roman  law 
has  been  admitted  only  as  a  rule  of  es- 
toppel upon  the  parties  to  tlie  transaction 
and  in  regard  to  their  rights,  and  not  as 
a  rule  of  evidence,  affecting  the  compe- 
tency of  witnesses ;  and  therefore  the 
maker  of  a  note,  being  released  by  his 
surety,  was  held  competent  in  an  action 
by  an  indorsee  against  the  surety,  to  tes- 
tify to  an  alteration  of  the  note,  made  by 
himself  and  the  payee,  which  rendered  it 
void  as  to  the  surety.  Haines  v.  Den- 
nett, 11  N.  H.  180.  See  further,  2  Stark. 
Evid.  179,  n.  (a) ;  Bayley  on  Bills,  p. 
586,  n.  {b)  (Phillips  and  Se wall's  ed.) 
[Chitty  on  Bills  (12th  Am.  ed.  by  Per- 
kins), p.  747  et  seq.  (*p.  669  et  seq.)].  But 
all  these  decisions  against  the  rule  in 
Walton  V.  Shelley,  except  that  in  Neio 
Jersey  and  the  last  cited  case  in  New 
Hampshire,  were  made  long  before  that 
rule  was  recognized  and  adopted  by  the 
Supreme  Court  of  the  United  States. 
The  rule  itself  is  restricted  to  cases 
where  the  witness  is  called  to  prove  that 
the  security  was  actually  void  at  the 
time  when  he  gave  it  currency  as  good ; 
and  this  in  the  ordinary  course  of  busi- 
ness, and  without  any  mark  or  intima- 
tion to  put  the  receiver  of  it  on  his  guard. 
Hence  the  indorser  is  a  comjietent  wit- 
ness, if  he  indorsed  the  note  "  without 
recourse"  to  himself,  Abbott  v.  Mitchell, 


CHAP,  n.] 


COIVrPETENCY   OF   WITNESSES. 


441 


are  interested  in  its  result}  The  principle  on  which  these  are 
rejected  is  the  same  with  that  which  excludes  the  parties  them- 
selves, and  which  has  already  been  considered  ;  ^  namely,  the 
danger  of  perjury,  and  the  little  credit  generally  found  to  be 
due  to  such  testimony,  in  judicial  investigations.  This  disqui  li- 
fying  interest,  however,  must  be  some  legal,  certain,  and  imme- 
diate interest,  however  minute,  either  in  the  event  of  the  cause 
itself,  or  in  the  record,  as  an  instrument  of  evidence,  in  support 
of  his  own  claims,  in  a  subsequent  action.^  It  must  be  a  legal 
interest,  as  distinguished  from  the  prejudice  or  bias  resulting 
from  friendship  or  hatred,  or  from  consanguinity,  or  any  other 
domestic  or  social  or  any  official  relation,  or  any  other  motives 
by  which  men  are  generally  influenced ;  for  these  go  only  to  the 
credibility.  Thus,  a  servant  is  a  competent  witness  for  his  mas- 
ter, a  child  for  his  parent,  a  poor  dependant  for  his  patron,  an 
accomplice  for  the  government,  and  the  like.  Even  a  Avife  has 
been  held  admissible  against  a  prisoner,  though  she  believed  that 
his  conviction  would  save  her  husband's  life.'^  The  rule  of  the 
Roman  law  —  "Idonei  non  videntur  esse  testes,  quibus  imperari 
potest  ut  testes  fient"  ^ — has  never  been  recognized  in  the  com- 


6  Shepl.  355;  or,  is  called  to  prove  a  fact 
not  going  to  the  original  infirmity  of  the 
security,  Buck  v.  Appleton,  2  Shepl.  284; 
Wendell  v.  George,  R.  M.  Charlton,  51 ; 
or,  if  the  instrument  was  negotiated  out 
of  the  usual  course  of  business,  Parke  v. 
Smith,  4  Watts  &  Serg.  287.  So,  the  in- 
dorser  of  an  accommodation  note,  made 
for  his  benefit,  being  released  by  the 
maker,  is  admissible  as  a  witness  for  the 
latter,  to  prove  that  it  has  subsequently 
been  paid.  Greenough  v.  West,  8  N.  H. 
400.  And  see  Kinsley  v.  Robinson,  21 
Pick.  327. 

1  In  Connecticut,  persons  interested  in 
the  cause  are  now,  by  statute,  made  com- 
petent witnesses ;  the  objection  of  interest 
going  only  to  their  credibility.  Rev.  Stat. 
1849,  tit.  1,  §  141.  In  New  York,  persons 
interested  are  admissible,  except  those 
for  whose  iinmedi;ite  benefit  the  suit  is 
prosecuted  or  defended,  and  the  assignor 
of  a  thing  in  action,  assigned  for  the  pur- 
pose of  making  him  a  witness.  Rev.  Stat. 
vol.  iii.  p.  769  (3d  ed.).  In  Ohio,  the  law 
is  substantially  the  same.  Stat.  March 
23,  1850,  §  3.  In  Michigan,  all  such  per- 
sons are  admissible,  except  parties  to  the 
record,  and  persons  for  whose  immediate 
benefit  the  suit  is  prosecuted  or  defended; 
and  their  husbands  and   wives.      Rev. 


Stat.  1846,  c.  102,  §  99.  In  Virginia,  per- 
sons interested  are  admissible  in  criminal 
cases,  when  not  jointly  tried  with  the 
defendant.  Rev.  Stat.  1849,  c.  199,  §  21. 
In  Massachusetts,  the  objection  of  interest 
no  longer  goes  to  the  competency  of  any 
witnesses,  except  witnesses  to  wills.  Gen. 
Stat.  c.  131,  §  14.  See  supra,  §§  327,  329, 
notes. 

2  Supra,  §§  326,  327,  329.  And  see 
the  observations  of  Best,  C.  J.,  in  Hovill 
V.  Stephenson,  5  Bing.  493. 

3  1  Stark.  Evid.  102  ;  Bent  v.  Baker, 
3  T.  R.  27  ;  Doe  v.  Tyler,  6  Bing.  390, 
per  Tindal,  C.  J.;  Smith  v.  Pragc  r,  7 
T.  R.  62;  AVilcox  v.  Farrell,  1  H.  Lords 
Cas.  93;  Bailey  v.  Lumpkin,  1  Kelly,  392. 

*  Rex  V.  Rudd,  1  Leach,  Cr.  Cas.  135, 
151.  In  weighing  the  testimony  of  wit- 
nesses naturally  biassed,  the  rule  is  to  give 
credit  to  their  statements  of  facts,  and  to 
view  their  deductions  from  facts  with  sus- 
picion.    Dillon  V.  Dillon,  3  Curt.  90. 

5  Dig.  lib.  22,  tit.  5,  I.  6 ;  Poth.  Obi. 
[793].  In  Lower  Canada,  the  incompetency 
of  the  relations  and  connections  of  the  par- 
ties, in  civil  cases,  beyond  the  degree  of 
cousins-german,  is  removed  by  Stat.  41 
Geo.  m.  c.  8.  See  Rev.  Code,  1845,  p 
144. 


442  LAW   OF   EVIDENCE.  [PAET  JH. 

mon  law,  as  affecting  the  competency ;  but  it  prevails  in  those 
countries  in  whose  jurisprudence  the  authority  of  the  Roman  law 
is  recognized.  Neither  does  the  common  law  regard  as  of  bind- 
ing force  the  rule  that  excludes  an  advocate  from  testifying  in 
the  cause  for  his  client,  —  "  Mandatis  cavetur,  ut  Praesides  atten- 
dant, ne  patroni,  in  causa  cui  patrocinium  preestiterunt,  testimo- 
nium dicant."  ^  But  on  grounds  of  public  policy,  and  for  the 
purer  administration  of  justice,  the  relation  of  lawyer  and  client 
is  so  far  regarded  by  the  rules  of  practice  in  some  courts,  as  that 
the  lawyer  is  not  permitted  to  be  both  advocate  and  witness  for 
his  client  in  the  same  cause. ^ 

§  387.  Nature  of  disqualifying  interest.  The  interest,  toO,  must 
be  real,  and  not  merelt/  ap2)rehended  by  the  party.  For  it  would 
be  exceedingly  dangerous  to  violate  a  general  rule,  because  in  a 
particular  case  an  individual  does  not  understand  the  nature  or 
extent  of  his  rights  and  liabilities.  If  he  believes  and  states  that 
he  has  no  interest,  the  very  statement  of  the  objection  to  his 
competency  may  inform  him  that  he  has  ;  and,  on  the  other  hand, 
if  he  erroneously  thinks  and  declares  that  he  is  interested,  he 
may  learn,  by  the  decision  of  the  court,  that  he  is  not.  Indeed, 
there  would  be  danger  in  resting  the  rule  on  the  judgment  of  a 
witness,  and  not  on  the  fact  itself ;  for  the  apprehended  existence 
of  the  interest  might  lead  his  judgment  to  a  wrong  conclusion. 
And,  moreover,  the  inquiry  which  would  be  necessary  into  the 
grounds  and  degree  of  the  witness's  belief  would  always  be  com- 
plicated, vague,  and  indefinite,  and  productive  of  much  incon- 
venience. For  these  reasons,  the  more  simple  and  practicable 
rule  has  been  adopted  of  determining  the  admissibility  of  the 
witness  by  the  actual  existence,  or  not,  of  any  disqualifying 
interest  in  the  matter.^ 

1  Dig.  lib.  22,  tit.  5,  1.  25;  Poth.  Obi.  respectable  authorities  to  the  point,  that  a 
[793].  witness  believing  himself  interested  is  to 

2  Stones  V.  Byron,  4  Dowl.  &  Lowndes,  be  rejected  as  incompetent.  See  Fother- 
893;  Dunn  v.  Packwood,  11  Jur.  242;  ingham  v.  Greenwood,  1  Stra.  121) ;  Tre- 
Reg.  Gen.  Sup.  Court,  N.  H.  Reg.  23,  lawny  v.  Thomas,  1  H.  Bl.  o07,  per  Ld. 
6  N.  II.  580;  Mishler  v.  Baumgardner,  Loughborough,  C.  J.,  and  Gould,  J.; 
1  Amer.  Law  Jour.  n.  s.  304.  But  see  L'Amitie,  0  Rob.  Adin.  209,  n.  (a) ; 
contra,  Little  j;.  Kcon,  1  N.  Y.  Code  Rep.  Plumb  v.  Whiting,  4  Mass.  518,  Rich- 
4 ;  1  Sandf.  607 ;  Potter  v.  Ware,  1  ardson  v.  Hunt,  2  Munf.  148  ;  Freeman 
Cu.xh.  518,  524,  and  cases  cited  by  Met-  v.  Lucket,  2  J.  J.  Marsh.  3!)0.  But  the 
calf,  J.  weight  of   modern   authority  is  clearly 

8  1   Phil.   Evid.   127,   128;    1    Stark,  the  other  way.     See  Commercial  Bank  of 

Evid.    102;    Greslcy    on    Evid.   p.   2.33;  Albany   v.    Hughes,    17    Wend.    94,  101, 

Tait  on  Kvid.  p.  3.Jl.     In  America  and  in  102 ;  Stall  ".  The  Catskill  Bank,  18  Wend. 

England,  there  are  some  early  but  very  4(j(J,  475,  476;  Smith  v.  Downs,  G  Couu. 


CHAP,  n.]  COMPETENCY   OF  WITNESSES.  443 

§  388.  Honorary  obligation.  If  the  witness  believes  himself  to 
be  under  an  honorary  obligation,  respecting  the  matter  in  contro- 
versy, in  favor  of  the  party  calling  him,  he  is  nevertheless  a 
competent  witness,  for  the  reasons  already  given ;  and  his  credi- 
bility is  left  with  the  jury.^ 

§  389.  Interest  must  be  in  the  event  of  the  suit.  The  disqualify- 
ino-  interest  of  the  witness  must  be  in  the  event  of  the  cause 
itself,  and  not  in  the  question  to  be  decided.  His  liabilitj  to  a 
like  action,  or  his  standing  in  the  same  predicament  with  the 
party,  if  the  verdict  cannot  be  given  in  evidence  for  or  against 
him,  is  an  interest  in  the  question  only,  and  does  not  exclude 
him.2  Thus,  one  underwriter  may  be  a  witness  for  another 
underwriter  upon  the  same  policy  ; "  or,  one  seaman  for  another, 
■whose  claim  for  wages  is  resisted,  on  grounds  equally  affecting 
all  the  crew;*  or,  one  freeholder  for  another,  claiming  land 
under  the  same  title,  or. by  the  same  lines  and  corners;^  or,  one 
devisee  for  another,  claiming  under  the  same  will  ;  ^  or,  one 
trespasser  for  his  co-trespasser  ;  "^  or,  a  creditor  for  his  debtor ;  ^ 
or  a  tenant  by  the  curtesy,  or  tenant  in  dower,  for  the  heir  at 
law,  in  a  suit  concerning  the  title.^  And  the  purchaser  of  a 
license  to  use  a  patent  may  be  a  witness  for  the  patentee,  in  an 
action  for  infringing  the  patent.^*^ 

§  390.  Test  of  interest.  The  true  test  of  the  interest  of  a  wit- 
ness is,  that  he  will  either  gain  or  lose  by  the  direct  legal  opera- 
tion and  effect  of  the  judgment,  or  that  the  record  will  be  legal 
evidence  for  or  against  him,  in  some  other  action.^^     It  must  be  a 

371  ;    Long:  v.    Bailie,   4   S.   &   R.  222 ;  5  Richardson  v.  Carey,  2  Rand.  87  ; 

Dellonew.  Rechmer,  4  Watts,  9;  Stimrael  Owings  v.  Speed,  5  Wheat.  423. 

V.  Underwood,  3  G.  &  J.  282 ;  Havis  v.  *>  Jackson     v.     Hogarth,     6     Cowen, 

Barkley,  1  Harper's  Law  Rep.  63.     And  248. 

see  infra,  §  423,  n.  ''  Per  Ashurst,  J.,  in  Walton  v.  Shel- 

1  Peterson  v.  Stoffles,  1  Campb.  144  ;  ley,  1  T.  R.  301.  See  also  Blackett  v. 
Solerete  v.  Melville,  1  Man.  &  Ryl.  198;  Weir,  5  B.  &  C.  387,  per  Abbott,  C.  J. ; 
Gilpin  y.  Vincent,  9  Johns.  219;  Moore  w.  Duncan  v.  Meikleham,  3  C.  &  P.  192; 
Hitchcock,  4  Wend.  292  ;  Union  Bank  v.  Curtis  v.  Graham,  12  Martin,  289. 
Knapp,  3  Pick.  96, 108  ;  Smith  v.  Downs,  »  Paul!  v.  Brown,  6  Esp.  34  ;  Now  ell  v. 
6  Conn.  365;  Stimmel  v.  Underwood,  3  Davies,  5  B.  &  Ad.  368. 

Gill  &  Johns.  282;    Howe  v.   Howe,  10  »  Jackson  v.  Brooks,   8  Wend.  426; 

N.  H.  88.  Doe  v.  Maisey,  1  B.  &  Ad.  439. 

2  Evans  v.  Eaton,  7  Wheat.  356,  424,  lo  De  Rosnie  v.  Fairlie,  1  M.  &  Rob. 
per  Story,  J. ;  Van  Nuys  ;•.  Terhune,  3  457. 

Johns.  Cas.  82  ;  Stewart  v.  Kip,  5  Johns.         "  1  Gilb.  Evid.  by  Lofft,  p.  225 ;  Bull. 

256;   Evans  v.  Hettich,  7   Wheat.  453;  N.  P.  284;  Bent?;.  Baker,  3  T.  R.  27;  6 

Clapp  V.  Mandeville,  5  How.  (Mo.)  197.  Bing.  894,  per  Tindal,  C.  J. ;  supra,  §  386; 

3  Bent  V.  Baker,  3  T.  R.  27.  Rex  v.  Boston,  4  East,  581,  per  Ld.  El 
*  Spurr  V.   Pearson,    1    Mason,   104 ;  lenborough. 

Hoyt  V.  Wildfire,  3  Johns.  518. 


444  LAW   OF  EVIDENCE.  [PAUT  IH. 

present,  certain,  and  vested  interest,  and  not  an  interest  uncer- 
tain, remote,  or  contingent.  Thus  the  heir  apparent  to  an  estate 
is  a  competent  witness  in  support  of  the  claim  of  his  ancestor ; 
though  one,  who  has  a  vested  interest  in  remainder,  is  not  com- 
petent.^ And  if  the  interest  is  of  a  doubtful  nature^  the  objection 
goes  to  the  credit  of  the  witness,  and  not  to  his  competency. 
For,  being  always  presumed  to  be  competent,  the  burden  of  proof 
is  on  the  objecting  party,  to  sustain  his  exception  to  the  compe- 
tency ;  and  if  he  fails  satisfactorily  to  establish  it,  the  witness  is 
to  be  sworn.2 

§  391.  Degree  of  interest  immaterial.  The  magnitude  or  degree 
of  the  interest  is  not  regarded  in  estimating  its  effect  on  the  mind 
of  the  witness  ;  for  it  is  impossible  to  measure  the  influence 
which  any  given  interest  may  exert.  It  is  enough,  that  the 
interest  which  he  has  in  the  subject  is  direct,  certain,  and  vested, 
however  small  may  be  its  amount ;  ^  for,  interest  being  admitted 
as  a  disqualifying  circumstance  in  any  case,  it  must  of  necessity 
be  so  in  every  case,  whatever  be  the  character,  rank,  or  fortune 
of  the  party  interested.  Nor  is  it  necessary  that  the  witness 
should  be  interested  in  that  which  is  the  subject  of  the  suit ;  for, 
if  he  is  liable  for  the  costs,  as  in  the  case  of  a  prochein  amg,  or  a 
guardian,  or  the  like,  we  have  already  seen,^  that  he  is  incompe- 
tent. And  though,  where  the  witness  is  equally  interested  on 
both  sides,  he  is  not  incompetent ;  yet  if  there  is  a  certain  excess 
of  interest  on  one  side,  it  seems  that  he  will  be  incompetent  to 
testify  on  that  side ;  for  he  is  interested,  to  the  amount  of  the 
excess,  in  procuring  a  verdict  for  the  party,  in  whose  favor  his 
interest  preponderates.^ 

1  Smith  V.  Blackham,  1  Salk.  283;  5  Larbalestierw.  Clark,  1  B.  &  Ad.  899. 
Doe  V.  Tyler,  6  Bing.  3W.  But  in  an  ac-  Where  this  preponderance  arose  from  a 
tion  for  waste,  brought  by  a  landlord,  who  liability  to  costs  only,  the  rule  formerly 
is  tenant  for  life,  tlie  remainder-man  is  a  was  to  admit  tiie  witness  ;  because  of  tlie 
competent  witnessforthe  plaintiff;  forthe  extreme  difficulty  which  frequently  arose, 
damages  would  not  belong  to  the  witness,  of  determining  the  question  of  his  liability 
but  to  the  plaintiff's  executor.  Leach  v.  to  pay  the  costs.  8ee  Ilderton  v.  Atkin- 
Thomas,  7  C.  &  P.  327.  son,  7   T.   R.   480;    Birt   v.   Kershaw,   2 

2  Bent  I'.  Baker,  3  T.  R.  27,  32  ;  Jack-  East,  458.  But  these  cases  were  broken 
son  V.  Benson,  2  Y.  &  J.  45  ;  Rex  v.  Cole,  in  upon,  by  Jones  v.  Brooke,  4  Taunt. 
1  Esp.  16!);  Duel  v.  Fisher,  4  Denio,  515;  404  ;  and  tlie  witness  is  now  held  incom- 
Comstock  V.  Rayford,  12  S.  &  M.  309 ;  petent,  wherever  there  is  a  itreponder- 
Story  V.  Saunders,  8  Humph.  663.  ancy  of  interest  on  the  side  of  the  party 

'  Burton  r.  Hinde,  6  T.  R.  173;  Butler  adducing  iiim,  though  it  is  created  only 

V.  Warren,  11  Johns.  57  ;  Doe  v.  Toolii,  bv  the  liability  to  costs.     Townsend  v. 

3  Y.  &  J.  19.  liowning,  14  East,  565;  Hubbly  i;.  Brown, 

*  Supra,%Zi7.     See  also,  iVi/ia,  §§  401,  1(J  Johns.  70;  Scott  v.McLellan,  2  (Ireenl. 

402.  rjy ;  Bottomley  i;.  Wilson,  3  Stark.  148 ; 


CHAP,  n.] 


COMPETENCY   OF   WITNESSES. 


445 


§  392.  Nature  of  interest  in  the  event  of  the  suit.  The  nature  of 
the  direct  interest  in  the  event  of  the  suit  "which  disqualifies  the 
"wdtness  may  be. illustrated  by  reference  to  some  adjudged  cases. 
Thns,  persons  having  become  bail  for  the  defendant  have  been 
held  incompetent  to  testify  as  witnesses  on  his  side  ;  for  they  are 
immediately  made  liable,  or  discharged,  by  the  judgment  against 
or  in  favor  of  the  principal.  And  if  the  bail  have  given  security 
for  the  appearance  of  the  defendant,  by  depositing  a  sum  of 
money  "with  the  officer,  the  effect  is  the  same.^  If  an  under- 
"writer,  "who  has  paid  his  proportion,  is  to  be  repaid  in  the  event 
of  the  plaintiff's  success  in  a  suit  against  another  underwriter 
upon  the  same  policy,  he  cannot  be  a  "witness  for  the  plaintiff.^ 
A  creditor,  "whether  of  a  bankrupt,  or  of  an  estate,  or  of  any 
other  person,  is  not  admissible  as  a  witness  to  increase  or  pre- 
serve the  fund,  out  of  which  he  is  entitled  to  be  paid,  or  other- 
"wise  benefited.^  Nor  is  a  bankrupt  competent,  in  an  action 
by  his  assignees,  to  prove  any  fact  tending  to  increase  the  fund ; 
though  both  he  and  his  creditors  may  be  "witnesses  to  diminish 
it.*     The  same  is  true  of  a  legatee,  "without  a  release,  and  also 


Harman  v.  Lesbrey,  1  Holt's  Cas.  390 ; 
Edmonds  v.  Lowe,  8  B.  &  C.  407.  And 
see  Mr.  Evans's  observations,  in  2  Poth. 
Obi.  p.  269,  App.  No.  16.  The  existence 
of  such  a  rule,  however,  was  regretted 
by  Mr.  Justice  Littledale,  in  1  B.  &  Ad. 
903 ;  and  by  some  it  is  still  thought  the 
earlier  cases,  above  cited,  are  supported 
by  the  better  reason.  See  further,  Bar- 
retto  V.  Snowden,  4  Wend.  181;  Hall  v. 
Hale,  8  Conn.  336. 

1  Lacon  v.  Higgins,  3  Stark.  132;  1 
T.  R.  164,  per  BuUer,  J.  But  in  such 
cases,  if  the  defendant  wislies  to  examine 
his  bail,  the  court  will  either  allow  his 
name  to  be  stricken  out,  on  the  defend- 
ant's addingand  justifyinganotherpersDU 
as  his  bail ;  or,  even  at  the  trial,  will  per- 
mit it  to  be  stricken  out  of  the  bail-piece, 
upon  the  defendant's  depositing  a  suffi- 
cient sum  with  the  proper  officer.  1 
Tidd's  Pr.  259  ;  Baillie  v.  Hole,  1  Mood.  & 
M.  289  ;  8.  c.  3  C.  &  P.  560  ;  Whartley  v. 
Fearnley,  2  Chitty,  103.  And  in  like 
manner  the  surety  in  a  replevin  bond  may 
be  rendered  a  competent  witness  for  the 
plaintiff.  Bailey r.  Bailey,  1  Bing. 92.  And 
so  of  the  indorser  of  a  writ,  who  thereby 
becomes  surety  for  payment  of  the  costs. 
Roberts  v.  Adams,  9  Greenl.  9.  So  in 
Indiana,  of  a  proc/iein  amy.  Harvey  v  Cof- 
fin, 5  Rlackf.  566.  See  further,  Salmon  v. 
Riince,  3  S.  &  R.  311,  314;  HaU  v.  Bay- 


lies, 15  Pick.  51,  53 ;  Beckley  v.  Freeman, 
Id.  468 ;  Allen  v.  Hawks,  13  Pick.  79 ; 
McCulloch  V.  Tyson,  2  Hawks,  336 ;  infra, 
§  430;  Comstocki'.  Paie,  3  Rob.  (La.) 
440. 

■^  Forrester  v.  Pigou,  3  Campb.  380 ; 
s.  c.  1  M.  &  S.  9. 

3  Craig  V.  Cundell,  1  Campb.  381  ; 
Williams  v.  Stephens,  2  Campb.  301 ; 
Shuttleworth  v.  Bravo,  1  Stra.  507  ;  Powel 
V.  Gordon,  2  Esp.  735;  Stewart  v.  Kip,  5 
Johns.  256;  Holden  v.  Hearn,  1  Beav. 
445.  But  to  disqualify  the  witness,  he 
must  be  legally  entitled  to  payment  out  of 
the  fund.  Phenix  v.  Ingraham,  5  Johns. 
427  ;  Peyton  r.  Hallett,  1  Caines,  363, 
379 ;  Howard  i-.  Chadbourne,  3  Greenl. 
461  ;  iMarland  i'.  Jefferson,  2  Pick.  240  ; 
Wood  V.  Braynard,  9  Pick.  322.  A  mere 
expectation  of  payment,  however  strong, 
if  not  amounting  to  a  legal  right,  has 
been  deemed  insufficient  to  render  hitn 
incompetent.  Seaver  v.  Bradley,  6 
Greenl.  60. 

^  Butler  V.  Cooke,  Cowp.  70 ;  Ewens 
V.  Gold,  Bull.  N.  P.  43 ;  Green  v.  Jones, 
2  Campb.  411 ;  Loyd  i-.  Stretton,  1  Stark. 
40 ;  Rudge  v.  Ferguson,  1  C.  &  P.  253  ; 
Masters  v.  Drayton,  2  T.  R.  496 ;  Clark 
V.  Kirkland,  4  Martin,  405.  In  order  to 
render  the  bankrupt  competent,  in  such 
cases,  he  must  release  his  allowance  and 
surplus  ;  and  lie  must  also  have  obtained 


446 


LAW   OF   EVIDENCE. 


[part  m. 


of  an  heir  or  distributee,  in  any  action  affecting  the  estate. ^  So, 
■where  the  immediate  effect  of  the  judgment  for  the  plaintiff  is  to 
confirm  the  witness  in  the  enjoyment  of  an  interest  in  possession,^ 
or,  to  place  him  in  the  immediate  possession  of  a  right,^  he  is  not 
a  competent  witness  for  the  plaintiff.  Neither  can  a  lessor  be 
admitted  as  a  witness,  to  prove  a  right  of  possession  in  his  lessee 
to  a  portion  of  land  claimed  as  part  of  the  premises  leased.* 

§  393.  Same  subject.  So  where  the  event  of  the  suit,  if  it  is 
adverse  to  the  party  adducing  the  witness,  will  render  the  latter 
liable  either  to  a  third  person,  or  to  the  party  himself,  whether 
the  liability  arise  from  an  express  or  implied  legal  obligation 
to  indemnify,  or  from  an  express  or  implied  contract  to  pay 
money  upon  that  contingency,  the  witness  is  in  like  manner  in- 
competent. The  cases  under  this  branch  of  the  rule  are  appar- 
ently somewhat  conflicting ;  and  therefore  it  may  deserve  a  more 
distinct  consideration.  And  here  it  will  be  convenient  to  dis- 
tinguish between  those  cases  where  the  judgment  will  be  evidence 
of  the  material  facts  involved  in  the  issue,  and  those  where  it  wiE 
be  evidence  only  of  the  amount  of  damages  recovered,  which  the 
defendant  may  be  compelled  to  pay.  In  the  former  class,  which 
will  hereafter  be  considered,  the  interest  of  the  party  is  in  the 
record,  to  establish  his  entire  claim  ;  in  the  latter,  which  belongs 


his  certificate,  without  which  he  is  in  no 
case  a  competent  witness  for  his  assignees. 
Masters  v.  Drayton,  2  T.  R.  496 ;  Good- 
hay  V.  Hendry,  1  Mood.  &  M.  319.  And 
though  his  certificate  has  heen  allowed 
by  the  competent  number  of  creditors,  and 
no  opposition  to  its  final  allowance  is  an- 
ticipated, yet  until  its  allowance  by  the 
Lord  Chancellor,  he  is  still  incompetent ; 
nor  will  the  trial  for  that  purpose  be  post- 
poned. Tenant  v.  Strachan,  1  Mood.  & 
M.  377.  So,  if  his  certificate  has  been 
finally  obtained,  yet,  if  his  future  effects 
remain  liable  (as  in  the  case  of  a  second 
bankruptcy,  where  he  has  not  yet  paid  the 
amount  necessary  to  exempt  his  future 
acquisitions),  he  is  still  incompetent  as  a 
witness  for  tiie  assignees,  being  interested 
to  increase  the  fmul.  Kennct  v.  Green- 
wollers,  Peake's  Cas.  3.  The  same  rules 
apply  to  the  case  of  insolvent  debtors. 
Delafield  v.  Freeman,  6  Ring.  294  ;  8.  c. 
4  C.  &  P.  67  ;  Kudge  v.  Ferguson,  1  C.  & 
P.  253.  But  upon  grounds  of  public  pol- 
icy and  convenience,  a  bankrupt  is  lield 
inadmissible  to  prove  any  fact  which  is 
material  to  support  or  to  defeat  the  fiat 
issued  against   him.     Nor  is  a   creditor 


competent  to  support  the  fiat,  whether  he 
has  or  has  not  availed  himself  of  the  right 
of  proving  under  the  bankruptcy.  See 
1  Phil.  Ev.  94-96,  and  cases  there  cited. 
^  Milliard  v.  Jennings,  1  Ld.  Raym. 
505;  1  Burr.  424;  2  Stark.  540;  Creen 
V.  Salmon,  3  N.  &  P.  388 ;  Bloor  v.  Da- 
vies,  7  M.  &  W.  235.  And  if  lie  is  a  re- 
siduary legatee,  his  own  release  of  the 
debt  will  not  render  him  competent  for  the 
executor,  in  an  action  against  the  debtor ; 
for  he  is  still  interested  in  supporting  the 
action,  in  order  to  relieve  the  estate  from 
the  charge  of  the  costs.  Baker  v.  Tyr- 
whitt,  4  Campb.  27  ;  0  Bing.  394,  per  Tin- 
dal,  C.  J. ;  Matthews  v.  Smith,  2  Y.  &  J 
426 ;  AUintjton  v.  Boarcroft,  Peake's  Add. 
Cas.  212  ;  West  v.  Randall,  2  Mason,  181 ; 
Randall  v.  Phillips,  3  Mason,  378  ;  Camp- 
bell V.  Tousey,  7  Cowen,  64;  Carlisle  v. 
Burley,  3  Greenl.  250.  Nor  is  a  legatee 
competent  to  testify  against  the  validity 
of  the  will,  if  it  is,  on  the  whole,  for  his 
interest  to  defeat  it.  Roberts  v.  Trawick, 
13  Ala.  68. 

2  Doe  V.  Williams,  Cowp.  021. 

3  Rex  V.  Williams,  9  B.  &  C.  549. 
*  Smith  V.  Chambers,  4  Esp.  164. 


CHAP.  II.]  COMPETENCY   OF   WITNESSES.  447 

to  the  present  head,  it  is  only  to  prove  the  amount  of  the  injury 
he  has  suffered. 

§  394.  Same  subject.  Thus,  in  an  action  against  the  principal 
for  damage  occasioned  by  the  neglect  or  misconduct  of  his  agent 
or  servant,  the  latter  is  not  a  competent  witness  for  the  defendant 
without  a  release ;  for  he  is,  in  general,  liable  over  to  his  master 
or  employer,  in  a  subsequent  action,  to  refund  the  amount  of 
damages  which  the  latter  may  have  paid.  And  though  the  record 
will  not  be  evidence  against  the  agent,  to  establish  the  fact  of 
misconduct,  unless  he  has  been  duly  and  seasonably  informed  of 
the  pendency  of  the  suit,  and  required  to  defend  it,  in  which 
case  it  will  be  received  as  evidence  of  all  the  facts  found  ;  ^  yet  it 
will  always  be  admissible  to  show  the  amount  of  damages  recov- 
ered against  his  employer.^  The  principle  of  this  rule  applies  to 
the  relation  of  master  and  servant,  or  employer  and  agent,  wher- 
ever that  relation  in  its  broadest  sense  m.ay  be  found  to  exist ; 
as,  for  example,  to  the  case  of  a  pilot,  in  an  action  against  the 
captain  and  owner  of  a  vessel  for  mismanagement,  while  the  pilot 
was  in  charge ;  ^  or,  of  the  guard  of  a  coach,  implicated  in  the 
like  mismanagement,  in  an  action  against  the  proprietor  ;  *  or,  of 
a  broker,  in  an  action  against  the  principal  for  misconduct  in  the 
purchase  of  goods,  which  he  had  done  through  the  broker ;  ^  or, 
of  a  sheriff's  officer,  who  had  given  security  for  the  due  execution 
of  his  duty,  in  an  action  against  the  sheriff  for  misconduct  in  the 
service  of  process  by  the  same  officer ;  ^  or,  of  a  ship-master,  in 
an  action  by  his  owner  against  underwriters,  where  the  question 
was,  whether  there  had  been  a  deviation  ;  ">  neither  of  whom  is 
competent  to  give  testimony,  the  direct  legal  effect  of  which  will 
be,  to  place  themselves  in  a  situation  of  entire  security  against  a 

1  Hamilton  v.  Cutts,  4  Mass.  349;  Ty-     man  v.  Browne,  1  P.  &  D.  364;  Moorish 
ler  V.  Ulmer,  12  Mass.  163.      See  infra,     v.  Foote,  8  Taunt.  454. 

§§  523  527,  538,  539.  ®  Powel  v.  Hord,  1  Stra.  650;  s.  c.  2 

2  Green  v.  New  Eiver  Co.,  4  T.  R.     Ld.  Raym.  1411;  Wliiteliouse  v.  Atkin- 
589.  son,  3  C.  &  P.  344  ;  Broom  v.  Bradley,  8 

8  Hawkins  v.  Finlayson,  3  C.  &  P.  305.  C.  &  P.  500.     So,  the  creditor  is  inconipe- 

But  the  pilot  has  been  held  admissible  in  tent  to  testify  for  the  officer,  where  he  is 

an  action  bv  the  owners  against  the  under-  Uable  over  to  the  latter,  if  the  plaintiff 

•writers,  for  the  loss  of  the  vessel  wliile  in  succeeds.     Keightley  v.  Birch,  3  Campb. 

his  charge,  on  the  ground  that  his  interest  521.     See  also  Jewett  v.  Adams,  8  Greenl. 

was  balanced.     Varin  v.  Canal  Ins.  Co.,  30;  Turner  r.  Austin,  16  Mass.  181 ;  Kice 

1  Wilcox,  223.  V.   Wilkins,   8    Shepl.   558    [Howland   v. 

*  Whitamore  v.  Waterhouse,  4  C  &P.  Willetts,  5  Selden,  170]. 
383.  '  De  Symonds  v.  De  la  Cour,  2  N.  R 

6  Field  r.  Mitchell.  6  Esp.  71  ;  Gevers  374. 
V.  Mainwaring,  1  Holt's  Cas.  139 ;  Boor- 


448  LAW   OF   EVIDENCE.  [PART  IH. 

subsequent  action.  But  the  liability  must  be  direct  and  imme- 
diate to  the  party .;  for  if  the  witness  is  liable  to  a  third  person, 
who  is  liable  to  the  party,  such  circuity  of  interest  is  no  legal 
ground  of  exclusion.^  The  liability  also  must  be  legal ;  for  if 
the  contract  be  against  law,  as,  for  example,  if  it  be  a  promise  to 
indemnify  an  officer  for  a  violation  of  his  duty  in  the  service  of 
process,  it  is  void  ;  and  the  promisor  is  a  competent  witness,  the 
objection  going  only  to  his  credibility .^ 

§  395.  Same  subject.  The  same  principle  applies  to  other  cases, 
where  the  direct  effect  of  the  judgment  will  be  to  create  any 
other  legal  claim  against  the  witness.  Thus,  if  he  is  to  repay  a 
sum  of  money  to  the  plaintiff,  if  he  fails  in  tlie  suit  he  is  incom- 
tent  to  be  sworn  for  the  plaintiff.^  So,  in  an  action  on  a  policy 
of  insurance,  where  there  has  been  a  consolidation  rule,  an  under- 
wi-iter,  who  is  a  party  to  such  rule,  is  not  a  competent  witness 
for  others.*  The  case  is  the  same,  wherever  a  rule  is  entered 
into,  that  one  action  shall  abide  the  event  of  another  ;  for  in  both 
these  cases  all  the  parties  have  a  direct  interest  in  the  result. 
And  it  makes  no  difference  in  any  of  these  cases,  whether  the  wit- 
ness is  called  by  the  plaintiff  oy  by  the  defendant ;  for,  in  either 
case,  the  test  of  interest  is  the  same  ;  the  question  being,  whether 
a  judgment,  in  favor  of  the  party  calling  tlie  witness,  will  procure 
a  direct  benefit  to  the  witness.  Thus,  in  assumpsit,  if  tlie  non- 
joinder of  a  co-contractor  is  pleaded  in  abatement,  such  person  is 
not  a  competent  witness  for  the  defendant  to  support  the  plea, 
unless  he  is  released  ;  for  though,  if  the  defence  succeeds,  the 
witness  will  still  be  liable  to  another  action,  yet  he  has  a  direct 
interest  to  defeat  the  present  action,  both  to  avoid  the  payment 
of  costs,  and  also  to  recover  the  costs  of  the  defence.^  The  case 
is  the  same,  where,  in  a  defence  upon  the  merits,  a  witness  is 
called  by  the  defendant,  who  is  confessedly,  or  by  his  own  testi- 
mony, a  co-contractor,  or  partner  with  him  in  the  subject  of  the 
action.^     So,  in  a  suit  against  one  on  a  joint  obligation,  a  co- 

1  Clark  V.  Lucas,  Tly.  &  M.  32.  recover  against  the  other  underwriters. 

2  Hodsdon  v.  Wilkins,  7  Greenl.  113.       Forrester  v.  Pigou,  1  M.  &  S.  S);  8.  c.  3 

3  Fothcriiighain  v.  Greenwood,  1  Stra.     Ciimpb.  380. 

120;    Rogers   v.   Turner,   6    West.    Law  *  Young  y.  Bairnor,  1  Esp.  103;  Lef 

Journ.  4()().  ferts  r.  IX'Mott,  21  Wend.  VM. 

*  'iliesameprinoiplealsoapplies where  '^  P>irt  v.  Wood,  1  Esp.  20;  Goodacre 

the  uiidirwritcT,  offered  as  a  witness  for  v.  Brcanie,  Pcake's  Cas.  174  ;  Cheyne  i;. 

the  defenthmt,  lias  paid  the  loss,  upon  an  Koops,  4  Esp.  112;  Evans  v.  Yeatlierd,  2 

agreement   with    the    assured    that   tlie  Bing.  133;    Hall   v.  Cecil,  6  Bing.   181; 

money  should  be  repaid,  if  he  failed  to  Hussell  v.  Blake,  2  M.  &  G.  373,  381,  382 ; 


CHAP,  n.]  COJNIPETEKCY  OF  wit]s:esses.  449 

obligor,  not  sued,  is  not  a  competent  witness  for  the  plaintiff,  to 
prove  the  execution  of  the  instrument  by  the  defendant ;  for  he 
is  interested  to  relieve  himself  of  part  of  the  debt,  by  charging  it 
on  the  defendant.^  And  upon  a  similar  principle,  where  an  ac- 
tion was  brought  upon  a  policy  of  insurance,  averred  in  the 
declaration  to  have  been  effected  by  the  plaintiffs,  as  agents,  for 
the  use  and  benefit  and  on  the  account  of  a  third  person,  it  was 
held  that  this  third  person  was  not  a  competent  witness  for  the 
plaintiffs  ;  and  that  his  release  to  the  plaintiffs,  prior  to  the  action, 
of  all  actions,  claims,  &c.,  which  he  might  have  against  them  by 
reason  of_the  policy,  or  for  any  moneys  to  be  recovered  of  the 
underwriters,  did  not  render  him  competent ;  neither  could  his 
assignment  to  them,  after  action  brought,  of  all  his  interest  in 
the  policy,  have  that  effect ;  for  the  action  being  presumed  to  have 
been  brought  by  his  authority,  he  was  still  liable  to  the  attorney 
for  the  costs.2  So,  in  an  action  on  a  joint  and  several  bond  against 
the  surety,  he  cannot  call  the  principal  obligor  to  prove  the  pay- 
ment of  money  by  the  latter  in  satisfaction  of  the  debt ;  for  the 
witness  has  an  interest  in  favor  of  his  surety  to  the  extent  of  the 
costs.^  So,  also,  where  a  legatee  sued  the  executor,  for  the  re- 
covery of  a  specific  legacy,  namely,  a  bond  ;  it  was  held,  that  the 
obligor,  having  a  direct  interest  in  preventing  its  being  enforced, 
was  not  a  competent  witness  to  prove  that  the  circumstances, 
under  which  the  bond  was  given,  were  such  as  to  show  that  it  was 
irrecoverable.^ 

§  396.  Same  subject.  It  may  seem,  at  the  first  view,  that 
where  the  plaintiff  calls  his  oivn  servant  or  agent  to  prove  an  in- 
jury to  his  property,  while  in  the  care  and  custody  of  the  servant, 
there  could  be  no  objection  to  the  competency  of  the  witness  to 
prove  misconduct  in  the  defendant ;  because,  whatever  might  be 
the  result  of  the  action,  the  record  would  be  no  evidence  against 
him  in  a  subsequent  action  by  the  plaintiff.     But  still  the  wit- 

Vanzanty.  Kay,2Humph.  106, 112.    But  r.  Dryden,  3  S.  &  R.  402,  407.     And  see 

this  point  lias  in  some  cases  been  other-  Latham  v.  Kenniston,  13  N.  H.  203. 
wise  decided.     See  Cossham  v.  Goldney,  2  RpH  y.  Smith,  5  B.  &  C.  188. 

2  Stark.  413  ;  Blaekett  v.  Weir,  5  B.  &  s  Townsend  v.  Downing,  5  East,  565, 

C.  385.     See  also  Poole  v.  Palmer,  9  M.  567,  per  Ld.  Ellenboroug-h.     In  an  action 

&  W.  71.  against  the  sheriff,  for  a  negligent  escape, 

1  Marshall  v.  Thraikill,  12  Ohio,  275  ;  the  debtor  is  not  a  competent  witness  for 

Ripley    v.    Thompson,    12    Moore,    55;  tiie  defendant,  he  being  liable  over  to  the 

Brown  v.  Brown,  4   Taunt.   752;    Mar-  defendant  for  the   damages   and   costs, 

quand  v.  Webb,  16  Johns.  89 ;  Purviance  Griffin  v.  Brown,  2  Pick.  J304 


29 


*  Davies  v.  Morgan,  1  Beav.  406. 


450  LAW   OF  EVIDENCE.  [PAET  IH. 

iiess,  in  such  case,  is  held  inadmissible  ;  upon  the  general  princi- 
ple already  mentioned,^  in  cases  where  the  master  or  principal  is 
defendant,  namely,  that  a  verdict  for  the  master  would  place  the 
servant  or  agent  in  a  state  of  security  against  any  action,  which, 
otherwise,  the  master  might  bring  against  him  ;  to  prevent  which 
he  is  directly  interested  to  fix  the  liability  on  the  defendant. 
Thus,  in  an  action  for  an  injury  to  the  plaintiff's  cart,  or  coach, 
or  horses,  by  negligently  driving  against  them,  the  plaintiff's  owe 
driver  or  coachman  is  not  a  competent  witness  for  him  without  a 
release.^  So,  in  an  action  by  the  shipper  of  goods,  on  a  policy  of 
insurance,  the  owner  of  the  ship  is  not  a  competent  witness  for 
the  plaintiff  to  prove  the  seaworthiness  of  the  ship,  he  having  a 
direct  interest  to  exonerate  himself  from  liability  to  an  action  for 
the  want  of  seaworthiness,  if  the  plaintiff  should  fail  to  recover 
of  the  underwriter.^  The  only  difference  between  the  case  where 
the  master  is  plaintiif  and  where  he  is  defendant,  is  this,  that  in 
the  latter  case  he  might  claim  of  the  servant  both  the  damages 
and  costs  which  he  had  been  compelled  to  pay  ;  but  in  the  former, 
he  could  claim  only  such  damages  as  directly  resulted  from  the 
servant's  misconduct,  of  which  the  costs  of  an  unfounded  suit  of 
his  own  would  not  constitute  a  part.* 

§  397.  Interest  from  liability  over.  Where  the  interest  of  the  wit- 
ness arises  from  liability  over,  it  is  sufficient  that  he  is  hound  to 
indemnify  the  party  calling  him  against  the  consequence  of 
some  fact  essential  to  the  judgment.  It  is  not  necessarj'-  that 
there  should  be  an  engagement  to  indemnify  him  generally  against 
the  judgment  itself,  though  this  is  substantially  involved  in  the 
other;  for  a  covenant  of  indemnity  against  a  particular  fact, 
essential  to  the  judgment,  is  in  effect  a  covenant  of  indemnity 
against  such  a  judgment.  Thus,  the  warrantor  of  title  to  the 
property  wliich  is  in  controversy  is  generally  incompetent  as  a 

1  Supra,  §  393.  This  principle  is  ap-  v.  Coatsworth,  1  C.  &  P.  645;  Wake  v. 
plied  to  all  cases  where  the  testimony  of  Lock,  5  C.  &  P.  454.  In  Sherman  v. 
the  witness,  adiluced  by  the  plaintiff,  Barnes,  1  M.  &  Rob.  69,  the  same  point 
■wonld  discharge  him  from  the  plaintiff's  was  so  nded  by  Tindal,  C.  J.,  upon  the 
demand,  by  establishing  it  against  the  authority  of  Moorish  v.  Foote,  though  he 
defendant.  Thus,  in  an  action  by  A  seems  to  have  thought  otherwise  upon 
against  15  for  the  board  of  C,  the  latter  is  principle,  and  perhaps  with  better  reason, 
rot  a  competent  witness  for  the  plaintiff  "  Hotheroe  v.  Elton,  Peak's  case,  84, 
to  prove  the  claim.  Kmerton  v.  Andrews,  cited  and  approved,  per  Gibbs,  C.  J.,  in  8 
4  Mass.  65i5 ;  llodson  v.  Marshall,  7  C.  &  Taunt.  457. 

P.  IG  [infrn,  §  410].  •»  I'er   Tindal,   C.  J.,  in  Faucourt  v. 

2  Miller  v.  Falconer,  1  Campb.  251;     Bull,  1  Bing.  N.  C.  681,  088. 
Moorisii  V.  Foote,  8  Taunt.  454 ;  lierrison 


ciLVP.  n.] 


COMPETENCY  OF   WITNESSES. 


451 


witness  for  his  vendee,  in  an  action  concerning  the  title.  And 
it  makes  no  difference  in  what  manner  the  liability  arises,  nor 
whether  the  property  is  real  or  personal  estate.  If  the  title  is  in 
controversy,  the  person  who  is  bound  to  make  it  good  to  one  of 
the  litigating  parties  against  the  claim  of  the  other  is  identified 
in  interest  with  that  party,  and  therefore  cannot  testify  in  his 
favor.^  And  if  the  quality  or  soundness  is  the  subject  of  dispute, 
and  the  vendee  with  warranty  has  resold  the  article  with  similar 
warranty,  the  principle  is  still  the  same.  If  the  effect  of  the 
judgment  is  certainly  to  render  him  liable,  though  it  be  only  for 
costs,  he  is  incompetent ;  ^  but  if  it  is  only  to  render  it  more  or 
less  probable  that  he  will  be  prosecuted,  the  objection  goes  only 
to  his  credibility.  But  whatever  the  case  may  be,  his  liability 
must  be  direct  and  immediate  to  the  party  calling  him,  and  not 
circuitous  and  to  some  other  person,  as,  if  a  remote  vendor  with 
warranty  is  called  by  the  defendant  as  a  witness,  where  the 
article  has  been  successively  sold  by  several  persons  with  the 
same  warranty,  before  it  came  to  the  defendant.^ 

§  398.  Cases  of  warranty.  In  order  to  render  the  witness  lia- 
ble, and  therefore  incompetent,  as  warrantor  of  the  title,  it  is  not 
necessary  to  show  an  express  contract  to  that  effect ;  for  an  im- 
plied  warranty  is  equally  binding.     Thus,  the  vendor  of  goods, 


1  Serle  v.  Serle,  2  Roll.  Abr.  685;  21 
Vin.  Abr.  362,  tit.  Trial,  G,  f,  pi.  1 ;  Steers 
V.  Cawardine,  8  C.  &  P.  570.  But  if  the 
vendor  sold  without  any  covenant  of  title, 
or  with  a  covenant  restricted  to  claims 
set  up  under  the  A'endor  himself  alone, 
the  vendor  is  a  competent  witness  for  his 
vendee.  Busby  v.  Grecnslate,  1  Stra. 
445 ;  Twambly  v.  Henley,  4  Mass.  441  ; 
Beidelman  v.  Foulk,  5  Watts,  308 ; 
Adams  v.  Cuddy,  13  Pick.  460 ;  Bridge 
V.  Eggleston,  14  Mass.  245;  Davis  v. 
Spooner,  3  Pick.  284  ;  Lathrop  v.  Muzzy, 
6  Greenl.  450. 

2  Lewis  V.  Peake,  7  Taunt.  153.  In 
this  case  the  bujer  of  a  horse  with  war- 
ranty resold  him  with  a  similar  warranty, 
and  being  sued  thereon,  he  gave  notice 
of  the  action  to  his  vendor,  offering  him 
the  option  of  defending  it ;  to  which  hav- 
ing received  no  answer,  he  defended  it 
himself,  and  failed  ;  it  was  holden,  that 
he  was  entitled  to  recover  of  his  vendor 
the  costs  of  defending  that  action,  as  part 
of  the  damages  he  had  sustained  by  the 
false  warranty.  In  the  later  case-  of 
Baldwin  v.  Dixon,  1  M.  &  Rob.  59,  where 
the  defendant,  in  an  action  on  a  warranty 


of  a  horse,  called  his  vendor,  who  had 
givena  similar  warranty,  LordTenterden, 
after  examining  authorities,  admitted  the 
witness.  A  vendor  was  admitted,  under 
similar  circumstances,  by  Lord  Alvanley, 
in  Briggs  v.  Crick,  5  Esp.  90.  But  in 
neither  of  these  cases  does  it  appear  that 
the  witness  had  been  called  upon  to  de- 
fend the  suit.  In  the  still  more  recent 
case  of  Bliss  v.  Mountain,  1  M.  &  Rob. 
302,  after  an  examination  of  various  au- 
thorities, Alderson,  J.,  held  the  vendor 
incompetent,  on  the  ground  that  the  ef- 
fect of  the  judgment  for  the  defendant 
would  be  to  relieve  the  witness  from  an 
action  at  his  suit. 

3  Clark  V.  Lucas,  Rv.  &  M.  32 ;  1  C.  & 
P.  156  ;  Briggs  v.  Crick,  5  Esp.  99 ;  Mar- 
tin V.  Kelly,  1  Stew.  (Ala.)  198.  Where 
the  plaintiff's  goods  were  on  the  wagon 
of  a  carrier,  which  was  driven  by  the 
carrier's  servant ;  and  the  goods  were 
alleged  to  be  injured  by  reason  of  a  de- 
fect in  the  highway ;  it  was  held,  in  an 
action  against  the  town  for  this  defect, 
that  the  carrier's  servant  was  a  compe- 
tent witness  for  tlie  owner  of  the  goods. 
Littlefield  v.  Portland,  13  Shepl.  37. 


452 


LAW   OF  EVIDENCE. 


[PAKT  m. 


having  possession  and  selling  them  as  his  own,  is  held  bound  in 
law  to  warrant  the  title  to  the  vendee  ;  ^  and  therefore  he  is 
generally  not  competent  as  a  witness  for  the  vendee  in  support  of 
the  title.2  This  implied  warranty  of  title,  however,  in  the  case 
of  sales  by  sheriffs,  executors,  administrators,  and  other  trustees, 
is  understood  to  extend  no  farther  than  this,  that  they  do  not 
know  of  any  infirmity  in  their  title  to  sell  in  such  capacity,  ind 
therefore  they  are  in  general  competent  witnesses.^ 

§  399.  Parties  to  bills  of  exchange.  In  regard  to  parties  to  hills 
of  exchange  and  negotiable  promissory  notes,  we  have  already 
seen  that  the  persons  who  have  put  them  into  circulation  by  in- 
dorsement are  sometimes  held  incompetent  witnesses^  to  prove 
them  originally  void.^  But,  subject  to  this  exception,  which  is 
maintained  on  grounds  of  public  policy,  and  of  the  interest  of 
trade,  and  the  necessity  of  confidence  in  commercial  transactions, 
and  which,  moreover,  is  not  everywhere  conceded,  parties  to 
these  instruments  are  admitted  or  rejected,  in  suits  between  other 
parties,  like  any  other  witnesses,  according  as  they  are  interested 
or  not  in  the  event  of  the  suit.  In  general,  their  interest  will  be 
found  to  be  equal  on  both  sides  ;  and  in  all  cases  of  balanced 
interest,  the   witness,  as   we  shall  hereafter  see,  is  admissible.^ 


1  2  Bl.  Comm.  451.  See  also  2  Kent, 
Comrn.  478,  and  cases  there  cited.  See 
also  Emerson  i*.  Brigliam,  10  Mass.  203 
(Rand's  ed.),  n. 

2  lieermance  v.  Vernoy,  6  Johns.  5 ; 
Hale  V.  Smith,  0  Grecnl.  416 ;  Baxter  i;. 
Graham,  5  Watts,  418.  In  the  general 
doctrine,  stated  in  the  text,  tliat  where 
the  vendor  is  liable  over,  though  it  he 
only  for  costs,  he  is  not  a  competent  wit- 
ness for  the  vendee,  the  English  and 
American  decisions  agree.  And  it  is  be- 
lieved that  the  weight  of  English  author- 
ity is  on  the  side  of  the  American  doc- 
trine, as  stated  in  the  text ;  namely,  that 
the  vendor  in  possession  stipulates  that 
his  title  is  good.  But  where  the  witness 
claims  to  have  ilerived  from  the  plaintiff 
the  same  title  which  he  conveyed  to  the 
defendant,  and  so  is  accountable  for  the 
value  to  the  one  party  or  the  other,  in 
either  event  of  the  suit,  unless  he  can 
discliarge  himself  by  other  proof,  he  is 
a  comi)etent  witness  for  the  defendant; 
unless  he  has  so  conducted  as  to  render 
himself  accoimtable  to  the  latter  for  the 
costs  of  the  suit,  as  part  of  the  damages 
to  be  recovered  against  him.  Thus, 
where,  in  trover  for  a  horse,  the  defend- 
ant called  his  vendor  to  prove  that  the 


horse  was  pledged  to  him  for  a  debt  due 
from  the  plaintiff,  with  authority  to  sell 
him  after  a  certain  day,  and  that  he  sold 
him  accordingly  to  the  defendant ;  he  was 
held  a  competent  witness.  Nix  v.  Cut- 
ting, 4  Taunt.  18.  So,  in  assumpsit,  for 
the  price  of  wine  sold  to  the  defendant, 
where  the  defence  was,  that  he  bought 
it  of  one  Faircloth,  and  not  of  the  plain- 
tiff, Faircloth  was  held  a  competent  wit- 
ness for  the  defendant  to  prove  tbat  he 
himself  purchased  the  wine  of  the  plain- 
tiff, and  sold  it  to  the  defendant,  who  had 
paid  him  the  price.  Labalastier  v.  Clark, 
1  B.  &  Ad.  899.  So,  tlie  defendant's  ven- 
dor has  been  held  competent,  in  trover, 
to  prove  that  the  goods  were  his  own, 
and  had  been  fraudulently  taken  from 
him  by  the  plaintiff.     Ward  v.  Wilkinson, 

4  B.  &  Aid.  410,  where  Nix  v.  Cutting  is  ex- 
plained by  Holroyd,  J.  See  also  Baldwin 
V.  Dixon.'l  M.  &  Ilob.  50 ;  Briggs  v.  Crick, 

5  Esp.  99,  and  Mr.  Starkie's  observations 
on  some  of  these  cases  ;  1  Stark.  Evid. 
109,  n.  (») ;  2  Stark.  Evid.  894,  n.  {d). 

8  Teto  V.  Blades,  6  Taunt.  Go7 ;  Mock- 
bee  V.  Gardiner,  2  liar.  &  Gill.  170;  Peter- 
mans  V.  Laws,  6  Leigh,  523,  529. 

*  Snpra,  §§  384,  385. 

6  I„Jm,  §  420. 


CHAP,  n.]  COMPETENCY  OF  WITNESSES.  453 

Thus,  in  an  action  against  one  of  several  makers  of  a  note,  an- 
other maker  is  a  competent  witness  for  the  plaintiff,  as  he  stands 
indifferent ;  for  if  the  plaintiff  should  recover  in  that  action,  the 
witness  will  be  liable  to  pay  his  contributory  share  ;  and  if  the 
plaintiff  should  fail  in  that  action,  and  force  the  witness  to  pay 
the  whole,  in  another  suit,  he  will  still  be  entitled  to  contribu- 
tion.^ So,  in  an  action  against  the  acceptor  of  a  bill,  the  drawer  is 
in  general  a  competent  witness  for  either  party  ;  for  if  the  plain- 
tiff recovers,  the  witness  pays  the  bill  by  the  hands  of  the  ac- 
ceptor ;  if  not,  he  is  liable  to  pay  it  himself.^  And  in  an  action 
by  the  indorsee  of  a  note  against  the  indorser,  the  maker  is  a  com- 
petent witness  for  the  plaintiff ;  for  if  the  plaintiff  prevails,  the 
witness  will  be  liable  to  pay  the  note  to  the  defendant ;  and  if  the 
defendant  prevails,  the  witness  will  be  liable,  to  the  same  extent, 
to  the  plaintiff.^ 

§  400.  Same  subject.  And  though  the  testimony  of  the  wit- 
ness, by  defeating  the  present  action  on  the  bill  or  note,  may 
probably  deter  the  holder  from  proceeding  in  another  action 
against  the  witness,  yet  this  only  affords  matter  of  observation  to 
the  jury,  as  to  the  credit  to  be  given  to  his  testimony.  Thus,  in 
an  action  by  the  indorsee  of  a  note  against  the  indorser,  the 
maker  is  a  competent  witness  for  the  defendant,  to  prove  that  the 
date  has  been  altered.*  And  in  an  action  by  the  indorsee  of  a 
bill  against  the  drawer  or  acceptor,  an  indorser  is,  in  general,  a 
competent  witness  for  either  party  ;  for  the  plaintiff,  because, 
though  his  success  may  prevent  him  from  calling  on  the  indorser, 
it  is  not  certain  that  it  will ;  and  whatever  part  of  the  bill  or  note 
he  may  be  compelled  to  pay,  he  may  recover  again  of  the  drawer 
or  acceptor ;  and  he  is  competent  for  the  defendant,  because,  if 
the  plaintiff  fails  against  the  drawer  or  acceptor,  he  is  driven 
either  to  sue  the  indorser  or  abandon  his  claim.^ 

§  401.   Liability  for  costs.     But  if  the  verdict  would  necessarily 

1  York  V.  Blott,  5  M.  &  S.  71.  He  has  »  Venning  i'.  Shuttleworth,  Bayley  on 
also  been  held  admissible  for  the  defend-  Bills,  p.  503  ;  Hubbly  v.  Brown,  16  Johns, 
ant.  Thompson  v.  Armstrong,  5  Ala.  70.  But  the  maker  of  an  accommodation 
383.  But  see  the  cases  cited  supra,  §  395,  note,  made  for  his  own  benefit,  is  incom- 
notes,  and  12  Ohio,  '279.  petent.     Pierce  v.  Butler,  14  Mass.  303, 

2  Dickinson   v.   Prentice,   4  Esp.  32;  312;  infra,  §401. 

Lowberv.  Shaw,  5  Mason,  241,  per  Story,  *  Levi  v.  Essex,  MSS.,  2  Esp.  Dig. 

J  ;  Rich  V.  Topping,  Peake's  Cas.  224.  708,  per  Ld.  Mansfield ;  Chitty  on  Bills, 

But  if  he  is  liable  in  one  event  for  the  p.  654,  n.  (h),  (8th  ed.). 
costs,  he  has  an  interest  on  that  side,  and  ^  Bayley  on  Bills,  594,   595  (2d  Am. 

is    inadmissible.     Scott   v.   McLellan,   2  ed.  by  Phillips  &  Sewall).     And  see  Bay 

Greenl.  199;  supra,  §  391,  and  n.  (3).  v.  Gunn,  1  Denio,  108. 


454  LAW   OF   EVIDENCE.  [PART  IH. 

benefit  or  affect  the  witness,  as  if  he  would  be  liable,  in  one  event, 
to  the  costs  of  the  action,  then,  without  a  release,  which  will  annul 
his  interest  in  the  event,  he  wDl  not  be  admissible  as  a  witness 
va  ttie  side  of  the  party  in  whose  favor  he  is  so  interested.  Thus, 
the  party  for  whose  use  an  accommodation  note  or  bill  has  been 
drawn  or  accepted,  is  incompetent  as  a  witness,  when  adduced 
by  him  who  has  lent  his  own  name  and  liability  for  the  accommo- 
dation of  the  witness.!  So,  in  an  action  against  the  drawer  of  a 
bill  of  exchange,  it  has  been  held,  that  the  acceptor  is  not  a  compe- 
tent witness  for  the  defendant,  to  prove  a  set-off ;  because  he  is 
interested  in  lessening  the  balance,  being  answerable  to  the  de- 
fendant only  for  the  amount  which  the  plaintiff  may  recover 
against  him.^ 

§  402.  Same  subject.  Where  a  liahility  to  costs  in  the  suit 
arises  in  any  other  manner,  it  is  still  an  interest  sufficient  to  ren- 
der the  witness  incompetent.^  Thus,  where  the  witness  called 
by  the  plaintiff  had  himself  employed  the  attorney,  to  whom  he 
had  made  himself  liable  for  the  costs,  he  was  held  incompetent, 
without  a  release  from  the  attorney.*  So,  where  he  had  given 
the  plaintiff  a  bond  of  indemnity  against  the  costs  of  the  suit,  he 
was  held  incompetent  as  a  witness  for  the  plaintiff,  as  to  any 
point  arising  in  the  action ;  even  such  as  the  service  of  a  notice 
on  the  defendant,  to  produce  certain  papers  at  the  trial.^  Thus, 
also,  where  an  attorney,^  or  an  executor,'  or  the  tenant,  on  whose 
premises  the  goods  of  the  plaintiff  in  replevin  had  been  distrained 
for  rent,^  or  the  principal  in  an  administration  bond,  the  action 
being  only  against  the  surety,^  have  been  found  personally  liable 
for  the  costs  of  the  suit,  they  have  been  held  incompetent  as  wit- 

1  Jone8  V.  Brooke,  4  Taunt.  463;  in  Bayley  on  Bills,  p.  586-599  (2d  Am. 
supra,  §  391,  and  n.  See  also  Bottom-  ed.  by  Phillips  &  Sewall),  with  the  notes 
ley  V.  Wilson,  3  Stark.  148 ;  Harman  v.  of  the  learned  editors  ;  Chitty  on  Bills, 
Lasbrey,  Holt's  Cas.  390;  Edmonds  v.  654-659  (8th  ed.) ;  2  Stark.  Evid.  179, 
Lowe,  8  B.  &  C.  407;  Hall  v.  Cecil,  6  182  (6th  Am.  ed.  with  Metcalf's,  Ingra- 
Bing.  181 ;  Scott  v.  McLellan,  2  Greenl.  ham's,  and  Gerliard's  notes) ;  Thayer  v. 
199  ;  Pierce  ;;.  Butler,  14  Mass.  303,  312  ;  Crossman,  1  Metcalf,  416. 

Southard  v.  Wil.son,  8  Sliepl.  494.  »  See  supra,  §  395. 

2  Mainwaring  v.  Mytton,  1  Stark.  83.  *  York  v.  Gribble,  1  Esp.  819 ;  Mar- 
It  is  deemed  unnecessary  any  further  to  land  v.  Jefferson,  2  Pick.  240;  Handley 
pursue  this  subject  in  this  place,  or  par-  v.  Edwards,  1  Curt.  722. 

ticulariy  to  mention  any  of  the  numerous  ^  Butler  >:  Warren,  11  Johns.  57. 

cases,  in  which  a  party  to  a  bill  or  note  ^  Chudwick  i\  Upton,  3  Pick.  442. 

has  been   held  competent,  or  otherwise,  '  Parker  v.  Vincent,  3  C.  &  P.  38. 

on  the  ground  of  being  free  from  interest,  ^   i{„sh  r.  Plickwire,  17  S.  &  R.  82. 

or   interested,  under    the    particular  cir-  ^  Owens  v.  Collinson,  3  Gill  &  Johns 

cmnstances  of  tiie  case.     It  will  suffice  26.     See  also  Cannon  i:  Jones,  4  llawks, 

to  refer  the  reader  to  the  cases  collected  868;  Riddle  v.  Moss,  7  Cranch,  206. 


CHAP,  n.]  COMPETENCY   OF  WITNESSES'.  465 

nesses  on  the  side  of  the  party  in  whose  favor  they  were  thus 
interested.  But  if  the  contract  of  indemnity  is  illegal,  as,  for 
example,  if  it  be  a  contract  to  bear  each  other  harmless  in  doing 
wrong,  it  creates  no  legal  liability  to  affect  the  witness.^ 

§  403.  In  criminal  cases.  This  doctrine  is  applied  in  the  same 
manner  in  criminal  cases,  where  the  witness  has  a  direct,  certain, 
and  immediate  interest  in  the  result  of  the  prosecution.  Thus,  in 
cases  of  summary  convictions,  where  a  penalty  is  imposed  by 
statute,  and  the  whole  or  a  part  is  given  to  the  informer  or  prose- 
cutor, who  becomes  entitled  to  it  forthwith  upon  the  conviction, 
he  is  not,  at  the  common  law,  a  competent  witness  for  the  prose- 
cution.2  So,  in  a  prosecution  under  the  statutes  for  forcible 
entry,  where  the  party  injured  is  entitled  to  an  award  of  immedi- 
ate restitution  of  the  lands,  he  is  not  a  competent  witness.^  This 
rule,  however,  is  subject  to  many  exceptions,  which  will  here- 
after be  stated.*  But  it  may  be  proper  here  to  remark,  that,  in 
general,  where  the  penalty  or  provision  for  restitution  is  evidently 
introduced  for  the  sake  of  the  party  injured,  rather  than  to  insure 
the  detection  and  punishment  of  the  offender,  the  party  is  held 
incompetent.^ 

§  404.  Interest  in  the  record.  Having  thus  briefly  considered 
the  subject  of  disqualification,  resulting  from  a  direct,  certain, 
and  immediate  interest  in  the  event  of  the  suit,  we  come  now  to 
the  second  branch  of  the  general  rule,  namely,  that  of  interest  in 
the  record,  as  an  instrument  of  evidence  in  some  other  suit,  to 
prove  a  fact  therein  alleged.  The  record  of  a  judgment,  as  here- 
after will  be  seen,  is  always  admissible,  even  in  an  action  between 
strangers,  to  prove  the  fact  that  such  a  judgment  was  rendered, 
and  for  such  a  sum  ;  but  it  is  not  always  and  in  all  cases  ad- 
missible to  prove  the  truth  of  any  fact,  on  which  the  judgment 
was  founded.  Thus  the  record  of  a  judgment  against  the  master, 
for  the  negligence  of  his  servant,  would  be  admissible  in  a  subse- 
([uent  action  by  the  master  against  the  servant,  to  prove  the  fact, 
that  such  a  judgment  had  been  recovered  against  the  master  for 

1  Humphreys  v.  Miller,  4  C  &  P.  7,  subsequent  civil  action,  he  is  not  an  in- 
per  Ld.  Tenterden  ;  Hodsou  v.  Wilkins,  competent  witness  upon  the  indictment. 
7  Greenl.  113.  Rex  v.  Luckup,  Wilies,  425,  n. ;  9  B.  &  C. 

2  Rex  V.  Williams,  9  B.   &   C.   549;  557,  558. 

Commonwealth   v.   PauU,   4   Pick.  251 ;  3  Rex  v.  Bevan,  Ry.  &  M.  242. 

Rex  V.  Tilley,  1  Stra.  316 ;  2  Russ.  on  *  See  infra.  §  412. 

Crimes,  601.602.     But  where  the  penalty         6  Rgx  i'.  Williams,  9  B.  &  C.  549,  per 

is  to  be  recovered  by  the  witness  in  a  Bayley,  J. 


456  '  LAW   OF  EVIDENCE.  [PART  in. 

Buch  an  amount,  and  upon  such  and  such  allegations  ;  but  not  tc 
prove  that  either  of  those  allegations  was  true  ;  unless  in  certain 
cases,  where  the  servant  or  agent  has  undertaken  the  defence, 
or,  being  bound  to  indemnify,  has  been  duly  required  to  assume 
it.  But  under  the  present  head  are  usually  classed  only  those 
cases  in  which  the  record  is  admissible  in  evidence  for  or  against 
the  witness,  to  establish  the  facts  therein  alleged  or  involved,  in 
order  to  acquire  a  benefit  or  repel  a  loss  ;  ^  and  it  is  in  this  view 
alone  that  the  subject  will  now  be  considered. 

§  405.  Claims  of  customary  right.  The  usual  and  clearest  illus- 
tration of  this  branch  of  the  rule  is  the  case  of  an  action  brought 
by  or  against  one  of  several  persons,  who  claim  a  customary  right 
of  common,  or  some  other  species  of  customary  right.  In  general, 
in  all  cases  depending  on  the  existence  of  a  particular  custom,  a 
judgment  establishing  that  custom  is  evidence,  though  the  parties 
are  different.  Therefore,  no  person  is  a  competent  witness  in 
support  of  such  custom,  who  would  derive  a  benefit  from  its 
establishment ;  because  the  record  would  be  evidence  for  him  in 
another  suit,  in  which  his  own  right  may  be  controverted.  Thus, 
where  the  plaintiff  prescribed  for  common  of  pasture  upon  Hamp- 
ton Common,  as  appurtenant  to  his  ancient  messuage,  and  charged 
the  defendant  with  neglect  to  repair  the  fence  ;  it  was  held,  that 
another  commoner,  who  claimed  a  similar  prescription  in  right  of 
another  tenement,  was  not  a  competent  witness  to  prove  the 
charge;  2  and  a  fortiori  he  is  not,  where  the  prescription  is,  that 
all  the  inhabitants  of  the  place  have  common  there.^  Thus,  also, 
an  inhabitant  of  a  town  is  not  a  competent  witness  to  prove  a 
prescription  for  all  the  inhabitants  to  dig  clams  in  a  certain 
place  ;  ^  nor  to  prove  a  prescriptive  right  of  way  for  all  the  in- 
habitants.^ So,  where  the  right  to  a  seat  in  the  common  council 
of  a  borough  was  in  controversy,  and  it  was  insisted  that  by  pre- 
scription no  person  was  entitled,  unless  he  was  an  inhabitant  and 
also  had  a  burgage  tenure ;  it  was  held,  that,  though  a  person 
having  but  one  of  these  qualifications  was  a  competent  witness  to 

1  1  Stark.  Evi.l.  114,  115;  Hunter  v.  »  Odiorne  v.  Wade,  8  Pick.  518.     The 

King,  4  B.  &  Aid.  210.  statutes  which  render  tlie  inhabitants  of 

■^  Ansconib   v.   Shore,    1    Taunt.   201.  towns   competent  witnesses,   where   the 

See  also  Parker  v.  Mitchell,  11  Ad.  &  El.  corporation  is  a  party,  or  is  interested, 

788.  Jipi'ly  only  to  cases  of  corporate  rights  or 

8  Hockley  v.  Lamb,  1  Ld.  Raym.  731.  interest,  and  not  to  cases  of  individual 

*  Lufkin    V.    Haskell,   3    Pick.    36(3 ;  antl  private  interest,  though  these  may 

Moore  V.  Griffin,  9  Sliepl.  350.     [But  see  extend  to  every  inhabitant.     See  supra. 

Look  V.  Bradley,  13  Met.  309,  372.]  §  331. 


CHAP,  n.]  COIVIPETENCY  OF  WITJTESSES.  457 

prove  the  prescription,  one  who  had  them  both  was  not ;  for  he 
would  thereby  establish  an  exclusive  right  in  favor  of  himself.^ 
So,  where  a  corporation  was  lord  of  a  manor,  and  had  approved  and 
leased  a  part  of  the  common,  a  freeman  was  held  incompetent  to 
prove  that  a  sufficiency  of  common  was  left  for  the  commoners.^ 
So,  one  who  has  acted  in  breach  of  an  alleged  custom  by 
the  exercise  of  a  particular  trade,  is  not  a  competent  witness  to 
disprove  the  existence  of  such  custom.^  Nor  is  the  owiier  of 
property  within  a  chapelry  a  competent  witness  to  disprove  an 
immemorial  usage,  that  the  land-owners  there  ought  to  repair  the 
chapel.*  And  it  is  proper  here  to  add,  that  in  order  to  exclude 
a  witness,  where  the  verdict  depends  on  a  custom,  which  he  is 
interested  to  support,  it  seems  to  be  necessary  that  the  custom 
should  be  stated  on  the  record  ;  ^  for  it  is  said,  that  the  effect  of 
the  verdict  to  support  the  custom  may  be  aided  by  evidence.^ 

§  406.  Interest  both  in  suit  and  record.  There  are  some  cases, 
in  which  the  interest  of  the  witness  falls  under  both  branches  of 
this  rule,  and  in  which  he  has  been  rejected,  sometimes  on  the 
ground  of  immediate  interest  in  the  event  of  the  suit,  and  some- 
times on  the  ground  of  interest  in  the  record,  as  an  instrument 
of  evidence.  Such  is  the  case  of  the  tenant  in  possession  in  an 
action  of  ejectment ;  who  is  held  incompetent  either  to  support 
his  landlord's  title,^  or,  to  prove  that  himself,  and  not  the  defend- 
ant, was  the  tenant  in  possession  of  the  land.^  And  where  a 
declaration  was  served  on  two  tenants,  in  possession  of  different 
parts  of  the  premises,  and  a  third  person  entered  into  a  rule  to 
defend  alone,  as  landlord,  it  was  held,  that  neither  of  the  tenants 
was  a  competent  witness  for  the  landlord,  to  prove  an  adverse 
possession  by  the  other  of  the  part  held  by  him  ;  for  as  they  were 
identified  with  the  landlord  in  interest,  the  judgment  for  the 
plaintiff  would  be  evidence  of  his  title,  in  a  future  action  against 
them  for  the  mesne  profits.^ 

1  Stevenson  v.  Nevinson,  Mayor,  &c.,  6  j  Stark.  Evid.  115,  n.  (e). 

2  Ld.  Kaym.  1353.  7  Doe  v.  Williams,  Cowp.  621 ;  Bourno 

2  Burton  v.  Hinde,  5  T.  R.  174.  v.  Turner,  1  Stra.  682. 

3  Tlie  Carpenters,  &c.,  of  Slirewsbury  ^  j)qq  „  Wilde,  5  Taunt.  183  ;  Doe  v. 
V.  Haward,  1  Doug.  374.  Bingham,  4  B.  &  Aid.  672. 

*  Rhodes  v.  Ainsworth,  1  B.  &  Aid.  ^  Doe  v.  Preece,  1  Tyrwh.  410.  For- 
87.  See  also  Lord  Falmouth  v.  George,  6  merly,  it  was  not  material  in  England,  as 
Bing.  286.  it  still  is  not  in  the  United  States,  to  de- 

*  Lord  Falmouth  v.  George,  5  Bing.  termine  with  precision  in  which  of  these 
286 ;  Stevenson  v.  Nevinson  et  al.,  2  Ld.  modes  the  witness  was  interested.  But 
Raym.  1353.  ty  Stat.  3  &  4  W.  IV.  c.  42,  §§  26,  27,  the 


458  LAW   OF  EVIDENCE.  [PAUT  m. 

§  407.  In  criminal  cases,  interest  in  record  disqualifies.  So,  in 
criminal  cases,  a  person  interested  in  the  record  is  not  a  compe- 
tent witness.  Thus  an  accessory,  whether  before  or  after  the 
fact,  is  not  competent  to  testify  for  the  prbicipaL^  And  where 
several  were  indicted  for  a  conspiracy,  the  wife  of  one  was  held 
not  admissible  as  a  witness  for  the  others ;  a  joint  offence  being 
charged,  and  an  acquittal  of  all  the  others  being  a  ground  of 
discharge  for  her  husband.^  Nor  is  the  wife  of  one  joint  tres- 
passer a  competent  witness  for  another,  even  after  the  case  is 
already  clearly  proved  against  her  husband.^ 

§  408.  Illustrations  of  competency  for  want  of  interest.  The 
extent  and  meaning  of  the  rule,  by  which  an  interested  witness 
is  rejected  as  incompetent,  may  be  further  illustrated  by  refer- 
ence to  some  cases,  in  which  the  witness  has  been  deemed  not 
disqualified.  We  have  already  seen  that  mere  wishes  or  bias  on 
the  mind  of  the  witness  in  favor  of  the  party  producing  him,  or 
strong  hopes  or  expectations  of  benefit,  or  similarity  of  situation, 
or  any  other  motive,  short  of  an  actual  and  legal  interest  in  the 
suit,  will  not  disqualify  the  witness.*  Such  circumstances  may 
influence  his  mind,  and  affect  his  opinions,  and  perhaps  may 
tempt  him  at  least  to  give  a  false  color  to  his  statements ;  and 
therefore  they  should  be  carefidly  considered  by  the  jury,  in 
determining  the  weight  or  credibility  to  be  given  to  his  testimony  $ 
but  they  are  not  deemed  sufficient  to  justify  its  utter  exclusion 
from  the  jury.  It  may  now  be  further  observed,  that  a  remote^ 
contingent,  and  uncertain  interest,  does  not  disqualify  the  witness. 
Thus,  a  paid  legatee  of  a  specific  sum,  or  of  a  chattel,  is  a  com- 
petent witness  for  the  executor ;  for  though  the  money  paid  to 
a  legatee  may  sometimes  be  recovered  back,  when  necessary  for 
the  payment  of  paramount  claims,  yet  it  is  not  certain  that  it  will 

objection  arising  from  interest  in    the  to  examine,  are  stated  and  discussed  in 

record,  as   a   future  instrument  of  evi-  Phil.  &  Am.  on  Evid.  pp.  108-113  ;  1  Phil. 

dence,  is  done  away  ;  tlie  court  being:  di-  Evid.  114-117.     See  also  Poole  v.  Palmer, 

rected,  whenever  this  objection  is  taken,  9  M.  &  W.  71. 

to  indorse  the  name  of  tiie  witness  on  the  i  1  Stark.  Evid.  130.     But  the  princi- 

record  or  document  on  which  the  trial  pal  is  a  competent  witness  against  the 

shall  be  had,  and  of  the  party  on  whose  accessory.     The  People   v.  Lohman,  2 

behalf   he   was   called   to   tcs'tify  ;   after  Barb.  S.  C  216. 

wiiich  tiie  verdict  or  judgment  in  tiiat  ^  Rpx  v.  Locker,  5  Esp.  107;  2  Russ. 

action  shall   never   be   evidence   for  or  on   Crimes,   602  ;  supra,   403    [Common- 

against  the  witness,  or  any  one  claiming  wealth  v.  Robinson,  1  Gray,  655j. 

under  iiim.     The  practice  under  tiiis  stat-  3  Hawkesworth  v.  Showier,  12  M.  & 

ute  seems  to  be  not  yet  completely  set-  W.  46. 

tied  ;   but   tiie  cases  whicii  have  arisen,  *  Supin,  §§  387,  389. 

and  whicli  it  is  deemed  unnecessary  hero 


CHAP,  n.]  COMPETENCY  OF   WITNESSES.  459 

be  needed  for  such  purpose  ;  nor  is  it  certain  if  the  legacy  has 
not  been  paid,  that  there  are  not  other  funds  sufficient  to  pay  it.^ 
So,  also,  a  creditor  of  an  estate,  not  in  a  course  of  liquidation 
as  an  insolvent  estate,  is  a  competent  witness  for  the  adminis- 
trator ;  for  he  stands  in  the  same  relation  to  the  estate  now  as  he 
did  to  the  debtor  in  his  lifetime  ;  and  the  probability  that  his  tes- 
timon}^  may  be  beneficial  to  himself,  by  increasing  the  fund  out 
of  which  he  is  to  be  paid,  is  equally  remote  and  contingent  in  both 
cases.2  It  is  only  where  his  testimony  will  certainly  have  that 
effect,  as  in  the  case  of  a  creditor  to  an  insolvent  estate,  or  a 
residuary  legatee,  or  a  distributee,  that  the  witness  is  rendered 
incompetent.^  Yet  in  these  cases,  and  in  the  case  of  a  creditor 
to  a  bankrupt  estate,  if  the  legatee,  distributee,  or  creditor  has 
assigned  his  interest  to  another  person,  even  equitably,  his  com- 
petency is  restored.^  In  an  action  of  covenant  against  a  lessee, 
for  not  laying  the  stipulated  quantity  of  manure  upon  the  land ; 
upon  a  plea  of  performance,  a  sub-lessee  of  the  defendant  is  a 
competent  witness  for  him,  to  support  the  plea  ;  ^  for  it  does  not 
appear  that  he  is  under  the  like  duty  to  the  defendant,  or  that 
a  recovery  b}^  the  latter  would  place  the  witness  in  a  state  of 
security  against  a  similar  action.^  Upon  the  same  principle,  a 
defendant  against  whom  a  civil  action  is  pending  is  a  competent 
witness  for  the  government  on  the  trial  of  an  indictment  for  per- 
jury, against  one  who  has  been  summoned  as  a  witness  for  the 
plaintiff  in  the  civil  action.'' 

§  409.  Same  subject.  Thus,  also,  the  tenant  in  possession  is  a 
competent  witness  to  support  an  action  on  the  case,  brought  by 
the  reversioner,  for  an  injury  done  to  the  inheritance.^  So,  in  an 
action  against  an  administrator  for  a  debt  due  by  the  intestate,  a 
surety  in  the  administrator's  bond  in  the  ecclesiastical  court  is  a 
competent  witness  for  him,  to  prove  a  tender  ;  for  it  is  but  a  bare 
possibility  that  an  action  may  be  brought  upon  the  bond.^     So, 

1  Clarke  v.  Gannon,  R.  &  M.  31.  6  Supra,  §  394. 

2  Paull  V.  Brown,  6  Esp.   34 ;  Daries  ^  Hart's  case,  2  Rob.  (Va.)  819. 

V.  Davies,  1  Mood.  &  M.  345;  Carter  v.  »  Doddington  v.  Hudson,  1  Bing.  257 

Pierce,  1  T.  R.  164.     An  annuitant  under  [Schnable  v.  Koehler,  28  Penn.  St.  181]. 

the  will  is  also  a  competent  witness  for  Where   the   defence   rested    on    several 

the  executor,  in  an  action  against  him  cognizances,  it  was  held,  that  the  person 

for  the  debt  of  the  testator.     Nowell  v.  under  whom  one  of  the  cognizances  was 

Davies,  5  B.  &  Ad.  368.  made,  was  competent  to  prove  matters 

3  Supra,  §  392.  distinct   from   and   independent  of  that 
*  Heath  v.  Hall,  4  Taunt.  326;  Boyn-  particular  cognizance.     Walker  v.  GileeL 

ton  V.  Turner,  13  Mass.  391.  2  C.  &  K.  671. 

6  Wishaw  V.  Barnes,  1  Campb.  341.  »  Carter  v.  Pierce,  1  T.  R.  163. 


460  LAW   OF  EVIDENCE.  [PABT  rH. 

in  an  action  against  a  debtor,  who  pleads  the  insolvent  debtor's 
act  in  discharge,  another  creditor  is  a  competent  witness  for  the 
plaintiff,  to  prove  that,  in  fact,  the  defendant  is  not  within  the 
operation  of  the  act.^  An  executor  or  trustee  under  a  will,  tak- 
ing no  beneficial  interest  under  the  will,  is  a  good  attesting  wit- 
ness.2  And  in  an  action  against  an  administrator  upon  a  bond 
of  the  intestate,  and  a  plea  oi  plene  administravit  by  the  payment 
of  another  bond  debt,  the  obligee  in  the  latter  bond  is  a  compe- 
tent witness  to  support  the  plea.^  A  trespasser,  not  sued,  is  a 
competent  witness  for  the  plaintiff,  against  his  co-trespasser.^  In 
a  qui  tarn  action,  for  the  penalty  for  taking  excessive  usury,  the 
borrower  of  the  money  is  a  competent  witness  for  the  plaintiff.^ 
A  person  who  has  been  arrested  on  mesne  process,  and  suffered 
to  escape,  is  a  competent  witness  for  the  plaintiff,  in  an  action 
against  the  sheriff  for  the  escape ;  ^  for  though  the  whole  debt 
may  be  recovered  against  the  sheriff,  yet,  in  an  action  on  the 
judgment  against  the  original  debtor,  the  latter  can  neither  j)lead 
in  bar,  nor  give  in  evidence,  in  mitigation  of  damages,  the  judg- 
ment recovered  against  the  sheriff.  And  one  who  has  been 
rescued  is  a  competent  witness  for  the  defendant,  in  an  action 
against  him  for  the  rescue. '^  So,  a  mariner,  entitled  to  a  share 
in  a  prize,  is  a  competent  witness  for  the  captain  in  an  action 
brought  by  him  for  part  of  the  goods  taken.^  In  all  these  cases, 
it  is  obvious  that  whatever  interest  the  witness  might  have,  it 
was  merely  contingent  and  remote ;  and,  on  this  ground,  the 
objection  has  been  held  to  go  only  to  his  credibility. 

§  410.  Witness  may  testify  against  his  interest.  It  is  hardly 
necessary  to  observe  that,  where  a  witness  is  produced  to  testify 

1  Norcott  V.  Orcott,  1  Stra.  650.  »  Bull.  N.  P.  143 ;  1  Ld.  Raym.  745. 

2  Phipps  V.  Pitcher,  6  Taunt.  220;  <  Morris  r.  Daubignj-,  5  Moore,  319. 
Corastock  y.  Iladlyme,  8  Conn.  254.  In  In  an  action  against  the  i)rinter  of  a  news- 
Miissachusetts,  the  executor  has  been  iield  paper  for  a  libel,  a  proprietor  of  the  paper 
incompetent  to  prove  the  will  in  tlie  is  a  competent  witness,  as  he  is  not  liable 
court  of  probate,  he  being  party  to  the  to  contribution.  Moscati  r.  Lawson,  7  C. 
proceedings,  and  liable  to  tlie  cost  of  the  &  P.  52. 

trial.     Sears  v.  Dillingham,  12  Mass.  358.  ^  Smith  r.  Prager,  7  T.  R.  60. 

But  the  will  may  be  proved  by  tlie  testi-  <•  Cass  i'.  Cameron,  Peake's  Cas.  124; 

mony  of  tiie  other  witnesses,  he  having  Hunter  v.  King,  4  B.  &  Aid.  210.     If  the 

been  a  competent  witness  at  the  time  of  escape  was  committed  while  tlie  debtor 

attestation.     Ibid.     Generally   speaking,  was  at  large,  under  a  bond  for  the  prison 

any  trustee  may  be  a  witne.ss,  if  he  has  liberties,  the  jailer,  who  took  the  bond, 

no  interest  in  the  matter;  but  not  other-  is  a  competent  witness   for  the   sheriffi 

wise.     Main    v.   Newson,    Anthon,    11;  Stewart  y.  Kip,  5  Johns.  256. 
Johnson   v.   Cunningham,    1    Ala.    24i) ;  7  Wilson  r.  Gary,  6  Mod.  211. 

George  v.  Kimball,  24  Pick.  2;34  ;  Nor-  »  Anon.,  Skiu.  4U3. 

wood  V.  Morrow,  4  Dev.  &  Bat.  442. 


CHAP.  II.]  COMPETENCY   OF   WITNESSES.  461 

against  his  interest,  the  rule,  that  mterest  disqualifies,  does  not 
apply,  and  the  witness  is  competent. 

§  411.  Exceptions  to  rule  disqualifying  by  interest.  The  general 
rule,  that  a  witness  interested  in  the  subject  of  the  suit,  or  in  the 
record,  is  not  competent  to  testify  on  the  side  of  his  interest, 
having  been  thus  stated  and  explained,  it  remains  for  us  to  con- 
sider some  of  the  exceptions  to  the  rule,  which,  for  various  rea- 
sons, have  been  allow-ed.  These  exceptions  chiefly  prevail  either 
in  criminal  cases,  or  in  the  affairs  of  trade  and  commerce,  and 
are  admitted  on  grounds  of  public  necessity  and  convenience, 
and  to  prevent  a  failure  of  justice.  They  may  be  conveniently 
classed  thus :  (1.)  Where  the  witness,  in  a  criminal  case,  is 
entitled  to  a  reward,  upon  conviction  of  the  offender;  (2.) 
"Where,  being  otherwise  interested,  he  is  made  competent  by 
statute  ;  (3.)  The  case  of  agents,  carriers,  factors,  brokers,  or 
servants,  when  called  to  prove  acts  done  for  their  principals,  in 
the  course  of  their  employment ;  and  (4.)  The  case  of  a  wit- 
ness, whose  interest  has  been  acquired  after  the  party  had  become 
entitled  to  his  testimony.  To  these  a  few  others  may  be  added, 
not  falling  under  either  of  these  heads. 

§  412.  Witnesses  entitled  to  reward.  And  in  the  first  place,  it  is 
to  be  observed,  that  the  circumstance  that  a  witness  for  the 
prosecution  will  be  entitled  to  a  reward  from  the  government  upon 
conviction  of  the  offender,  or  to  a  restoration,  as  owner  of  the 
property  stolen,  or  to  a  portion  of  the  fine  or  penalty  inflicted,  is 
not  admitted  as  a  valid  objection  to  his  competency.  By  the 
very  statute,  conferring  a  benefit  upon  a  person,  who,  but  for 
that  benefit,  would  have  been  a  witness,  his  competency  is  virtu- 
ally continued,  and  he  is  as  much  a  witness  after  that  benefit,  as 
he  would  have  been  before.  The  case  is  clear  upon  grounds  of 
public  policy,  with  a  view  to  the  public  interest,  and  because  of 
the  principle  on  which  rewards  are  given.  The  public  has  an 
interest  in  the  suppression  of  crime,  and  the  conviction  of  crimi- 
nals ;  it  is  with  a  view  to  stir  up  greater  vigilance  in  apprehend- 
ing, that  rewards  are  given ;  and  it  would  defeat  the  object  of 
the  legislature  to  narrow  the  means  of  conviction,  by  means  of 
those  rewards,  and  to  exclude  testimony,  which  otherwise  would 
have  been  admissible.^     The  distinction  between  these  excepted 

1  Rex  V.  Williams,  9  B.  &  C.  649,  566,  per  Bay  ley,  J.  See  also  1  GUb.  Evid.  by 
Lofft,  245-250. 


462  LAW   OF  EVIDENCE.  [PAET  HI. 

cases,  and  those  which  fall  under  the  general  rule,  is,  that  in  the 
latter,  the  benefit  resulting  to  the  witness  is  created  chiefly  for 
his  own  sake,  and  not  for  public  purposes.  Such  is  the  case  of 
certain  summary  convictions  heretofore  mentioned.^  But  where 
it  is  plain,  that  the  infliction  of  a  fine  or  penalty  is  intended  as  a 
punishment,  in  furtherance  of  public  justice,  rather  than  as  an 
indemnity  to  the  party  injured,  and  that  the  detection  and  con- 
viction of  the  ofi'ender  are  the  objects  of  the  legislature,  the  case 
will  be  witliin  the  exception,  and  the  person  benefited  by  the 
conviction  will,  notwithstanding  his  interest,  be  competent.^  If 
the  reward  to  which  the  witness  will  be  entitled  has  been  offered 
by  a  private  individual,  the  rule  is  the  same,  the  witness  being 
still  competent ;  but  the  principle  on  which  it  stands  is  different ; 
namely,  this,  that  the  public  have  an  interest  upon  public 
grounds,  in  the  testimony  of  every  person  who  knows  any  thing 
as  to  a  crime  ;  and  that  nothing  which  private  individuals  can 
do  will  take  away  the  public  right.^  The  interest,  also,  of  the 
witness  is  contingent ;  and,  after  all,  he  may  not  become  entitled 
to  the  reward. 

§  413.  Or  pardon.  The  reason  of  this  exception  extends  to, 
and  accordingly  it  has  been  held  to  include,  the  cases  where,  in- 
stead of  a  pecuniary  reward,  a  pardon  or  exemption  from  prosecu- 
tion is  offered  by  statute  to  any  person  participating  in  a  particular 
offence,  provided  another  of  the  parties  should  be  convicted  upon 
his  evidence.  In  such  cases.  Lord  Ellenborough  remarked,  that 
the  statute  gave  a  parliamentary  capacitation  to  the  witness,  not- 
withstanding his  interest  in  the  cause ;  for  it  was  not  probable 
that  the  legislature  would  intend  to  discharge  one  offender,  upon 
his  discovering  another,  so  that  the  latter  might  be  convicted 
without  intending  that  the  discoverer  should  be  a  competent 
witness.* 

§  414.    Or  other  benefit.     And  in  like  manner,  where  the  wit- 

J  Supra,  §  403.  Baldw.  99 ;  Commonwealth  v.  Mntilton, 

2  Rex  V.  Williams,  9  B.  &  C.  549,  560,  9  Mass.  30 ;  Rex  v.  Teasdale,  3  Esp.  68, 

per  Bayley,  J.     See  also  the  case  of  the  and  the  cases  cited  in  Mr.  Day's  note; 

Rioters,  1  Leach, Cr.Cas. 353,  n.  (nj.wliere  Salisbury  v.  Connecticut,  6  Conn.  101. 

the  general  question  of  the  admissibility  ^  9  B.  &  C.  6o6,  per  Ba\-ley,  J. 

of  witnesses,  to  whom  a  reward  was  of-  *  Reward  v.  Shipley,  4  East,  180,  183. 

fered  by  the  government,  being  submitted  See  also  Rex  v.  Rudd,  1  Leach,  Cr.  Cas. 

to  the  twelve  judges,    was   resolved   in  151,  156-158;    Bush    v.   Railing,    Sayer, 

the  affirmative.     McNally's  Evid.  p.  01,  289;  Mead  u.  Robinson,  Willes,  422  ;  Sut- 

Rule  12;  United   States  v.  Murphy,   10  ton  v.  Bishop,  4  Burr.  2283. 

Peters,  203 ;  United  States  v.  Wilson,  1 


CHAP,  n.]  COMPETENCY  OF   WITNESSES.  468 

ness  will  directly  derive  any  other  benefit  from  the  conviction  of 
the  offender,  he  is  still  a  competent  witness  for  the  government, 
in  the  cases  already  mentioned.  Formerly,  indeed,  it  was  held 
that  the  person  whose  name  was  alleged  to  be  forged^  was  not  ad- 
missible as  a  witness  against  the  prisoner,  on  an  indictment  for 
the  forgery,  upon  the  notion  that  the  prosecution  was  in  the  na- 
tui'e  of  a  proceeding  in  rem^  and  that  the  conviction  warranted  a 
judicial  cancellation  of  the  instrument.  And  the  prosecutor  in 
an  indictment  for  perjury  has  been  thought  incompetent,  where 
he  had  a  suit  pending,  in  which  the  person  prosecuted  was  a  ma- 
terial witness  against  him,  or  was  defendant  against  him  in  a  suit 
in  equity,  in  which  his  answer  might  be  evidence.  But  this 
opinion  as  to  cases  of  perjury  has  since  been  exploded  ;  and  the 
party  is,  in  all  such  cases,  held  admissible  as  a  witness,  his  credi- 
bility being  left  to  the  jury.  For  wherever  the  party  offers  as 
evidence,  even  to  a  collateral  point,  a  record  which  has  been  ob- 
tained on  his  own  testimony,  it  is  not  admitted ;  and,  moreover, 
the  record  in  a  criminal  prosecution  is  generally  not  evidence  of 
the  facts  in  a  civil  suit,  the  parties  not  being  the  same.^  And  as 
to  the  person  whose  name  has  been  forged,  the  unsoundness  of 
the  rule,  by  which  he  was  held  incompetent,  was  tacitly  conceded 
in  several  of  the  more  recent  cases,  which  were  held  not  to  be 
within  the  rule  ;  and  at  length  it  was  repealed  in  England  by  an 
express  statute,^  which  renders  the  party  injured  a  competent 
witness  in  all  criminal  prosecutions  for  forgery.  In  America, 
though  in  some  of  the  earlier  cases  the  old  English  rule  of  exclu- 
sion was  followed,  yet  the  weight  of  authority,  including  the  later 
decisions,  is  quite  the  other  way,  and  the  witness  is  now  almost 
universally  held  admissible.^ 

1  Gilb.  Evid.  by  Lofft,  pp.  33,  34 ;  Bull,  would  be  called  as  a  witness  ag-ainst  him 

N.  P.  232,  245;  Rex  v.  Boston,  4  East,  in  a  civil  action  about  to  be  tried,  he  was 

672;  Abrahams  v.  Bunn,  4  Burr.  2251.  incompetent  as  a  witness  to  support  tiie 

See  further,  infra,  §  637.  indictment.     Ilex  v.  Hulme,  7  C.  &  P.  8. 

^  9  Geo.  IV.  c.  32.  But  qucvre,  and  see  Rex  v.  Boston,  4  East, 

8  Respublica  I'.  Keating:,  1  Dall.  110;  572;    supra,   §   362.     In    several   of    tiie 

Pennsylvania  ?'.  Farrel,  Addis.  246;  The  United  States,  the  party  injured,  or  in- 

People  V.  Howell,  4  .Johns.  296,  302;  The  tended  to  be  injured,  or  entitled  to  satis- 

People  V.  Dean,  6  Cowen,  27  ;  Common-  faction  for  the  injury,  or  liable  to  pay  the 

wealth  V.  Frost,  5  Mass.  53;  Common-  costs  of  the  prosecution,  is  by  statute 

wealth  V.  Waite,  Id.  261  ;  The  State  v.  made  a  competent  witness  upon  a  crimi- 

Stanton,  1   Ired.  424 ;   Simmons  r.  The  nal    prosecution    for    the    offence.     See 

State,  7  Ham.  116.     Lord  Denman  is  re-  Missouri,  Rev.  Stat.  1845,  c.   138,  §  22; 

ported  to  have  ruled,  at  Nisi  Prins,  that  Illinois,   Rev.    Stat.    1833,    Crim.    Code, 

where  the  prosecutor,  in  an  indictment  §§  154,  169,  pp.  208,212;  California,  Rev. 

for  perjury,  expected  that  the  prisoner  Stat.  1850,  c.  99,  §  13.     In  New  Hampshire, 


464  LAW   OF   EVIDEN-CE.  [PAET  HI. 

§  415.  Informers.  The  second  class  of  cases,  in  which  the  gen- 
eral rule  of  incompetency  by  reason  of  interest  does  not  apply, 
consists  of  exceptions  created  by  express  statutes,  and  which 
otherwise  would  not  fall  within  the  reason  of  the  first  exception. 
Of  this  sort  are  cases  where  the  informer  and  prosecutor,  in 
divers  summary  convictions  and  trials  for  petty  offences,  is,  by 
the  statutes  of  different  States,  expressly  made  a  competent  wit- 
ness, notwithstanding  his  interest  in  the  fine  or  forfeiture ;  but 
of  which  the  plan  of  this  Treatise  does  not  require  a  particular 
enumeration. 

§  416.  Agents,  factors,  brokers,  &c.  The  third  class  of  cases, 
excepted  out  of  the  general  rule,  is  that  of  agents,  carriers,  factors^ 
brokers,  and  other  servants,  wlien  offered  to  prove  the  making  of 
contracts,  the  receipt  or  payment  of  money,  the  receipt  or  de- 
liver}'-  of  goods,  and  other  acts  done  within  the  scope  of  their 
employment.  This  exception  has  its  foundation  in  public  con- 
venience and  necessity ;  ^  for  otherwise,  affairs  of  daily  and 
ordinary  occurrence  could  not  be  proved,  and  the  freedom  of 
trade  and  commercial  intercourse  would  be  inconveniently  re- 
strained. And  it  extends,  in  principle,  to  every  species  of  agency 
or  intervention,  by  which  business  is  transacted  ;  unless  the  case 
is  overborne  by  some  other  rule.  Thus,  where  the  acceptor  of  a 
bill  of  exchange  was  also  the  agent  of  the  defendant,  who  was 
both  drawer  and  indorser,  he  was  held  incompetent,  in  an  action 
by  the  indorsee,  to  prove  the  terms  on  which  he  negotiated  the 
bill  to  the  indorsee,  in  order  to  defeat  the  action,  though  the 
facts  occurred  in  the  course  of  his  agency  for  the  defendant,  for 
whose  use  the  bill  was  negotiated  ;  it  being  apparent  that  the 
witness  was  interested  in  the  costs  of  the  suit.^  But  in  cases  not 
thus  controlled  by  other  rules,  the  constant  course  is  to  admit  the 
witness,  notwithstanding  his  apparent  interest  in  the  event  of 
the  suit.^     Thus,  a  porter,  a  journeyman,  or  salesman,  is  admis- 

no  person  is  disqualified  as  a  witness  in  a  merely  founded  on  the  accidental  want 

criminal  prosecution  by  reason  of  inter-  or  failure  of  evidence  in  tlie  particular 

est,  "  except  the  respondent."    Eev.  Stat.  case.    Poth.  on  Obi.  by  Evans,  App.  No. 

1842,  c.  21b,  §   17.     As  to  the  mode  of  16,  pp.  208,  267.     In  all  the  cases  of  this 

examining  the  prosecutor,  in  a  trial  for  class,  there  seems  also  to  be  enough  of 

forgerv,  see  jmsl,  vol.  iii.  §  106,  n.  contingency  in  the  nature  of  the  interest, 

1  Bull.  N.  P.  289 ;  10  B.  &  C.  864,  per  to  render  the  witness  admissible  under 

Parke,  J. ;  Benjamin  r.  Portcus,  2  H.  Bl.  the  general  rule. 
5!»1  ;  Mathews  v.  Ilaydon,   2   Esp.    609.  '^  Edmonds  v.  Lowe,  8  B.  &  C.  407. 

This  necessity,  says  Mr.  Evans,  is  that  3  Theobald  v.  Tregott,  11  Mod.  262, 

which  arises  from  the  general  state  and  per  Holt,  C.  J. 
order  of  society,  and  not  that  which  is 


CHAP,  n.]  COaiPETENCY  OF   WITNESSES.  465 

sible  to  prove  the  delivery  of  goods.^  A  broker,  who  has  effected 
a  policy,  is  a  competent  witness  for  the  assured,  to  prove  any 
matters  connected  with  the  policy;  even  though  he  has  an  in- 
terest in  it  arising  from  his  lien.^  A  factor,  who  sells  for  the 
plaintiff,  and  is  to  have  a  poundage  on  the  amount,  is  a  competent 
witness  to  prove  the  contract  of  sale.^  So,  though  he  is  to  have 
for  himself  all  he  has  bargained  for  beyond  a  certain  amount,  he 
is  still  a  competent  witness  for  the  seller.^  A  clerk,  who  has 
received  money,  is  a  competent  witness  for  the  party  who  paid  it, 
to  prove  the  payment,  though  he  is  himself  liable  on  the  receipt 
of  it.^  A  carrier  is  admissible  for  the  plaintiff,  to  prove  that  he 
paid  a  sum  of  money  to  the  defendant  by  mistake,  in  an  action  to 
recover  it  back.^  So  of  a  banker's  clerk.^  A  servant  is  a  witness 
for  his  master,  in  an  action  against  the  latter  for  a  penalty,  such, 
for  example,  as  for  selling  coals  without  measure  by  the  bushel, 
though  the  act  were  done  b}-  the  servant.^  A  carrier's  book- 
keeper is  a  competent  witness  for  his  master,  in  an  action  for  not 
safely  carrying  goods.^  A  shipmaster  is  a  competent  witness  for 
the  defendant  in  an  action  against  his  owner,  to  prove  the  ad- 
vancement of  moneys  for  the  purposes  of  the  voyage,  even  though 
he  gave  the  plaintiff  a  bill  of  exchange  on  his  owner  for  the 
amount.^^  The  cashier  or  teller  of  a  bank  is  a  competent  witness 
for  the  bank,  to  charge  the  defendant  on  a  promissory  note,^i  or 
for  money  lent,  or  overpaid,^^  Qr  obtained  from  the  officer  without 
the  security  which  he  should  have  received ;  and  even  though 
the  officer  has  given  bond  to  the  bank  for  his  official  good  con- 
duct.i^  And  an  agent  is  also  a  competent  witness  to  prove  his 
own  authority,  if  it  be  by  parol.^^ 

1  Bull.  N.  P.  280;  4  T.  R.  590;  Adams  9  Spencer  v,  Goulding,  Peake's   Cas. 
V.  Davis,  3  Esp.  48.                                           129. 

2  Hunter  v.  Leatliley,  10  B.  &  C.  858.  lo  Descadillas  v.  Harris,  8  Greenl.  298  ; 
8  Dixon  V.  Cooper,  3  Wils.  40;  Shep-     Mihvard  v.  Hallett,  2  Caines,   77.     And 

ard  V.  Palmer,  6  Conn.  95;  Dupeau  v.  see  Mart ineau  j^  Woodland,  2  C.  &  P.  65. 

Hyams,  2  MoCord,  146 ;  Scott  v.  Wells,  "  Stafford  Bank  v.  Cornell,   1  N.  H. 

6  Watts  &  Serg.  357.  192. 

4  Benjamin  v.  Porteus,  2  H.  Bl.  590;  12  O'Brien  v.  Louisiana  State  Bank,  5 
Caune  v.  Sagory,  4  IMartin,  81.  Martin,  n.  s.  305  ;  United  States  Bank  v. 

5  Mathews  v.  Haydon,  2  Esp.  509.    [A  Johnson,  Id.  310. 

clerk  who  paid  out  tlie  money  of  his  em-  '3  'piig  Franklin  Bank  v.  Freeman,  16 

ployer  by  mistake  has  been  held  to  be  a  Pick.  535;  U.    S.   Bank   v.   Stearns,    15 

competent  witness  for  liis  employer  in  Wend.  314. 

any  action  to  recover  back  the  money.  1*  Lowber  v.  Shaw,  5  Mason,  242,  per 

Burd  V.  Ross,  15  Mo.  2-54.]  Story,  J. ;  McGunnagle  v.  Thornton,  10 

6  Barker  v.  Macrae,  3  Campb.  144.  S.  &  R.  251 ;  Ilderton  v.  Atkinson,  7 
1  Martin  v.  Horrell,  1  Stra.  G47.  T.  R.  480;  Birt  v.  Kershaw,  2  East,  458 
8  E.  Ind.  Co.  V.  Gossing,  Bull.  N.  P.  [Gould    i;.    Norfolk  Lead  Co.,  9    Cush. 

289,  per  Lee,  C.  J.  338J. 

VOL.  I.  30 


466  LAW   OF  EVIDENCE.  [PAET  m. 

§  417.  Limitations  of  exception  in  favor  of  agents,  &c.  This  ex- 
ception being  thus  founded  upon  considerations  of  public  necessity 
and  convenience,  for  the  sake  of  trade  and  the  common  usage  of 
business,  it  is  manifest,  that  it  cannot  he  extended  to  cases  where 
the  witness  is  called  to  testify  to  facts  out  of  the  usual  and  ordi- 
nary course  of  business,  or  to  contradict  or  deny  the  effect  of  tl  ose 
acts  which  he  has  done  as  agent.  He  is  safely  admitted,  in  all 
cases,  to  prove  that  he  acted  according  to  the  directions  of  his 
principal,  and  within  the  scope  of  his  duty ;  both  on  the  ground 
of  necessity,  and  because  the  principal  can  never  maintain  an  ac- 
tion against  him  for  any  act  done  according  to  his  own  directions, 
whatever  may  be  the  result  of  the  suit  in  which  he  is  called  as  a 
witness.  But  if  the  cause  depends  on  the  question,  whether  the 
agent  has  been  guilty  of  some  tortious  act,  or  some  negligence  in 
the  course  of  executing  the  orders  of  his  principal,  and  in  respect 
of  which  he  would  be  liable  over  to  the  principal,  if  the  latter 
should  fail  in  the  action  pending  against  him,  the  agent,  as  we 
have  seen,  is  not  a  competent  witness  for  his  principal,  without  a 
release.^ 

§  418.  Interest,  when  and  how  acquired.  In  the  fourth  class  of 
exceptions  to  the  rule  of  incompetency  by  reason  of  interest, 
regard  is  paid  to  the  time  and  manner  in  which  the  interest  was 
acquired.  It  has  been  laid  down  in  general  terms,  that  where 
one  person  becomes  entitled  to  the  testimony  of  another,  the 
latter  shall  not  be  rendered  incompetent  to  testify,  by  reason  of 
any  interest  suhseq^ienthj  acquired  in  the  event  of  the  suit.^  But 
though  the  doctrine  is  not  now  universally  admitted  to  that 
extent,  yet  it  is  well  settled  and  agreed,  that  in  all  cases  where 
the  interest  has  been  subsequently  created  by  the  fraudulent  act 
of  the  adverse  party,  for  the  purpose  of  taking  off  his  testimony, 
or  by  any  act  of  mere  wantonness,  and  aside  from  the  ordinary 
course  of  business  on  the  part  of  the  witness,  he  is  not  thereby 
rendered  incompetent.  And  where  the  person  was  the  original 
witness  of  the  transaction  or  agreement  between  the  parties,  in 

1  Supra,  §§   394-306;    Miller  v.   Fal-  2  gee  Bent  v.  Baker,  3  T.  R.  27,  per 

coner,  1  Canipl).  2ol ;  Tlieohald  v.  Tre-  Ld.  Keiiyon,  and  Asiihurst,  J. ;  Barlow  y. 

gott,  il  M()d.2(i2;  Gevers  r.  Mainwaring,  Vowell,  Skin.  580,  per  Ld.  Holt;  Cowp. 

1  Holt's  C;as.  loU;  iMcUraine  c  Fortune,  780;  Jackson  v.  Riimsey,  o  Johns.  Cas. 

3   Campb.    317;    1    Stark.    Kvid.    113;  234,  237  ;  s"/Jru,  §  1(37  [Sabine  v.  Strong, 

Fuller  I'.  Whcelock,  10  Tick.   135,  138;  6  Met.  070J. 
McDowell   V.    Stimpson,   3    Watts,    12i), 
135,  per  Kennedy,  J. 


CHAP,  n.]  COIVIPETENCY   OF   WITNESSES.  467 

whose  testimony  they  both  had  a  common  interest,  it  seems  also 
agreed,  that  it  shall  not  be  in  the  power,  either  of  the  witness 
or  of  one  of  the  parties,  to  deprive  the  other  of  his  testimony, 
by  reason  of  any  interest  subsequently  acquired,  even  though  it 
were  acquired  without  any  such  intention  on  the  part  of  the 
witness  or  of  the  party.^  But  the  question  upon  which  learned 
judges  have  been  divided  in  opinion  is,  whether,  where  the  Avit- 
ness  was  not  the  agent  of  both  parties,  or  was  not  called  as  a 
witness  of  the  original  agreement  or  transaction,  he  ought  to  be 
rendered  incompetent  by  reason  of  an  interest  subsequently 
acquired  in  good  faith,  and  in  the  ordinary  course  of  business. 
On  this  point  it  was  held  by  Lord  Ellenborough  that  the  pen- 
dency of  a  suit  could  not  prevent  third  persons  from  transacting 
business  bona  fide  with  one  of  the  parties  ;  and  that,  if  an  inter- 
est in  the  event  of  the  suit  is  thereby  acquired,  the  common  con- 
sequence of  law  must  follow,  that  the  person  so  interested  cannot 
be  examined  as  a  witness  for  that  party  from  whose  success  he 
will  necessarily  derive  an  advantage. ^  And  therefore  it  was  held, 
that  where  the  defence  to  an  action  on  a  policy  of  insurance  was, 
that  there  had  been  a  fraudulent  concealment  of  material  facts, 
an  underwriter,  who  had  paid  on  a  promise  of  repayment  if  the 
policy  should  be  detennined  invalid,  and  who  was  under  no  obli- 
gation to  become  a  witness  for  either  party,  was  not  a  competent 
witness  for  another  underwriter  who  disputed  the  loss.^  This 
doctrine  has  been  recognized  in  the  courts  of  several  of  the 
United  States  as  founded  in  good  reason ;  *  but  the  question 
being  presented  to  the  Supreme  Court  of  the  United  States,  the 
learned  judges  were  divided  in  opinion,  and  no  judgment  was 
given  upon  the  point.^  If  the  subsequent  interest  has  been  cre- 
ated by  the  agency  of  the  party  producing  the  witness,  he  is 
disqualified ;  the  party  having  no  right  to  complain  of  his  own 
act.^ 

1  Forrester  r.  Pigou,  3  Campb.  381 ;  1  Long  v.  Bailie,  4  Serg.  &  R.  222  ;  'The 

Stark.  Evid.  118;  Long  y.  Bailie,  4  S.  &  Manciiester  Iron   Manufacturing   Co.   i*. 

R.  222 ;  14  Piclc.  47 ;  Phelps  v.  Riley,  3  Sweeting,  10  Wend.  162.     In  Maine,  the 

Conn.  266,  272 ;  Rex  v.  Fox,  1  Stra.  652 ;  court  seems  to  have  held  the  witness  ad- 

supra,  §  167.  missible  in  all  cases,  where  the  party  ob- 

-  Forrester  v.  Pigou,  3  Campb.  381 ;  jecting  to  the  witness  is  himself  a  party 

B.  c.  1  M.  &  S.  9 ;  Hovill  v.  Stephenson,  to  the  agreement  by  which  his  interest 

6  Bing.  493;  supra,  §  167.  is  acquired.     Burgess  v.  Lane,  8  Greeni. 

3  Forrester  v.  Pigou,  3  Campb.  381;  16-3,  170;  supra,  §  167. 

B.  c.  1  M.  &  S.  9.  5  Winsliip  v.  Bank  of  United  States, 

*  Phelps  V.  Riley,  3  Conn.  266,  272 ;  6  Peters,  529,  552. 

Eastman  v.  Windship,  16  Pick.  44,  47 ;  ^  Hovill  v.  Stephenson,  5  Bing.  493 ; 


468  LAW   OF  EVIDENCE.  [PAUT  m. 

§  419.  "Witness  may  divest  himself  of  interest.  It  may  here  be 
added,  that  where  an  interested  witness  does  all  in  his  power  to 
divest  himself  of  his  interest,  by  offering  to  surrender  or  release  it, 
which  the  surrenderee  or  releasee,  even  though  he  be  a  stranger, 
refuses  to  accept,  the  principle  of  the  rule  of  exclusion  no  longer 
applies,  and  the  witness  is  held  admissible.  Thus,  in  an  eject- 
ment, where  the  lessors  of  the  plaintiff  claimed  under  a  will, 
against  the  heir  at  law,  and  the  executor  was  called  by  the  plain- 
tiff to  prove  the  sanity  of  the  testator,  and  was  objected  to  by 
the  defendant,  because  by  the  same  will  he  was  devisee  of  the 
reversion  of  certain  copyhold  lands,  to  obviate  which  objection 
he  had  surrendered  his  estate  in  the  copyhold  lands  to  the  use  of 
the  heir  at  law,  but  the  heir  had  refused  to  accept  the  surrender ; 
the  court  held  him  a  competent  witness.^  So,  if  the  interest  may 
be  removed  by  the  release  of  one  of  the  parties  in  the  suit,  and 
such  party  offers  to  remove  it,  but  the  witness  refuses,  he  cannot 
thereby  deprive  the  party  of  his  testimony .^ 

§  420.  Equal  interest  for  both  parties  no  disqualification.  Where 
the  witness,  though  interested  in  the  event  of  the  cause,  is  so  sitr 
uated  that  the  event  is  to  him  a  matter  of  indifference,  he  is  still 
a  competent  witness.  This  arises  where  he  is  equally  interested 
on  both  sides  of  the  cause,  so  that  his  interest  on  one  side  is  coun- 
terbalanced by  his  interest  on  the  other.^  But  if  there  is  a  pre- 
ponderance in  the  amount  or  value  of  the  interest  on  one  side, 
this  seems,  as  we  have  already  seen,  to  render  him  an  interested 
witness  to  the  amount  of  the  excess,  and  therefore  to  disqualify 
him  from  testifying  on  that  side.'*  Whether  the  circumstance 
that  the  witness  has  a  remedy  over  against  another,  to  indemnify 
him  for  what  he  may  lose  by  a  judgment  against  the  party  calling 

supra,  §  167  [Joiirdain  v.  Sherman,  6  Shepl.  267  [Adams  v.  Gardiner,  13  B. 
Cush.  (Mass.)  i;37.  Marringescems  tobe  Mon.  197  ;  Governor  v.  Gee,  10  Ala.  199. 
excepted.  Ante,  §  386,  n.].  Where  both  parties  to  a  replevin  suit 
1  Goodtitlew.  Welford,  1  Doug.  139;  5  claim  the  property  by  purchase  from  the 
T.  K.  .'35,  jier  Buller,  J.  Tlie  legatee  in  a  same  vendor,  iiis  interest  is  balanced,  and 
will,  wlio  has  been  paid,  is  considered  a  he  is  a  competent  witness  without  a  re- 
competent  witness  to  supywrt  the  will  in  lease,  to  impeacli  one  of  the  sales.  Nute 
a  suit  at  law.  Wyndham  v.  Chetwynd,  v.  Bryant,  31  Maine,  653]. 
1  Burr.  414.  *  Snpm,  §§  391,  399,  and  cases  there 
-  1  riiil.  Evid.  149.  cited.  Where  the  interest  of  the  witness 
8  Supra,  §  399.  See  also  Cushman  v.  is  prima  facif  balanced  between  the  par- 
Lokcr,  2  Mass.  103;  Kmerson  v.  Provi-  ties,  the  possibility  of  a  better  defence 
denee  Hat  Manuf.  Co.,  12  Mass.  237;  against  one  than  the  other  will  not  pre- 
Roberts  v.  Wliiting,  16  Mass.  186;  Rice  vent  his  being  sworn.  Starkweather  v 
V.  Austin,  17  Mass.  179;  Prince  v.  Shep-  Mathews,  2  Hill,  131. 
ard,  9  Pick.  17G;  Lewis  v.  Hodgdon,  5 


CHAP,  n.]  CO:NrPETENCY   OF   TVITXESSES.  469 

him,  is  sufiScient  to  render  him  competent  by  equalizing  his  inter- 
est, is  not  clearly  agreed.  Where  his  liability  to  costs  appears 
from  his  own  testimony  alone,  and  in  the  same  mode  it  is  shown 
that  he  has  funds  in  his  hands  to  meet  the  charge,  it  is  settled  that 
this  does  not  render  him  incompetent.^  So,  where  he  stated  that 
he  was  indemnified  for  the  costs,  and  considered  that  he  had 
ample  security?  And  where,  upon  this  objection  being  taken  to 
the  witness,  the  party  calling  him  forthwith  executed  a  bond 
to  the  adverse  party,  for  the  payment  of  all  costs,  with  sureties, 
whom  the  counsel  for  the  obligee  admitted  to  be  abundantly 
responsible,  but  at  the  same  time  he  refused  to  receive  the  bond, 
the  court  held  the  competency  of  the  witness  to  be  thereby 
restored  ;  observing,  however,  that  if  the  solvency  of  the  sureties 
had  been  denied,  it  might  have  presented  a  case  of  more  embar- 
rassment, it  being  very  questionable  whether  the  judge  could 
determine  upon  the  sufficiency  of  the  obligors  so  as  to  absolve 
the  witness  from  liability  to  costs.^  The  point  upon  which  the 
authorities  seem  to  be  conflicting  is  where  there  is  merely  a  right 
of  action  over,  irrespective  of  the  solvency  of  the  party  liable  ; 
the  productiveness  of  the  remedy,  in  actual  satisfaction,  being 
wholly  contingent  and  uncertain.  But  in  such  cases  the  weight 
of  authority  is  against  the  admissibility  of  the  witness.  Thus, 
in  an  action  against  the  sheriff  for  taking  goods,  his  officer,  who 
made  the  levy,  being  called  as  a  witness  for  the  defence,  stated 
upon  the  voir  dire  that  he  gave  security  to  the  sheriff,  and  added, 
that  he  was  indemnified  by  the  creditor,  meaning  that  he  had  his 
bond  of  indemnity.  But  Lord  Tenterden  held  him  not  a  com- 
petent witness  ;  observing,  that  if  the  result  of  the  action  were 
against  the  sheriff,  the  witness  was  liable  to  a  certainty,  and  he 
might  never  get  repaid  on  his  indemnity ;  therefore  it  was  his 
interest  to  defeat  the  action.*  So,  where  the  money,  with  which 
the  surety  in  a  replevin  bond  was  to  be  indemnified,  had  been 
deposited  in  the  hands  of  a  receiver  designated  by  tlie  judge,  it 
was  held  that  this  did  not  restore  the  competency  of  the  surety 
as  a  witness  in  the  cause  for  the  principal ;  for  the  receiver  miglit 

'  Collins   V.  McCrummen,  3  Martin,  s.   p.   Lake  v.   Auburn,   17   Wend.   18; 

N.  s.  166  ;  Allen  v.  Hawks,  13  Pick.  79.  supra.  §  392. 

2  Chaffee  v.  Thomas,  7  Co  wen,  358  ;  *  Whitehouse  v.  Atkinson,  3  C.  &  P. 
contra,  Pond  v.  Hartwell,  17  Pick.  272,  344;  Jewett  v.  Adams,  8  Greenl.  30; 
per  Shaw,  C.  J.  Paine  v.  Hussey,  5  Shepl.  274. 

3  Brandigee  v.  Hale,  13  Johns.  125  ; 


470-  LAW   OF   EVIDENCE.  [PAET  HI. 

refuse  to  pay  it  over,  or  become  insolvent,  or,  from  some  other 
cause,  the  remedy  over  against  him  might  be  unproductive.^ 
The  true  distinction  lies  between  the  case  where  the  witness 
must  resort  to  an  action  for  his  indemnity,  and  that  in  which  the 
money  is  either  subject  to  the  order  of  the  court,  and  within  its 
actual  control  and  custody,  or  is  in  the  witness's  own  hands. 
Therefore  it  has  been  laid  down  by  a  learned  judge,  that  where 
a  certain  sum  of  money  can  be  so  placed,  either  with  the  witness 
himself  or  with  the  court  and  its  officers,  under  a  proper  rule 
directing  and  controlling  its  application  according  to  the  event, 
as  that  the  interest  creating  the  disability  may  be  met  and  extin- 
guished before  the  witness  is  or  can  be  damnified,  it  shall  be  con- 
sidered as  balancing  or  extinguishing  that  interest  so  as  to  restore 
the  competency  of  the  witness.^ 

§  421.  Objection  on  account  of  interest.  In  regard  to  the  time 
of  taking  the  objection  to  the  competency  of  a  witness,  on  the 
ground  of  interest,  it  is  obvious  that,  from  the  preliminary 
nature  of  the  objection,  it  ought  in  general  to  be  taken  before 
the  witness  is  examined  in  chief.  If  the  party  is  aware  of  the 
existence  of  the  interest,  he  will  not  be  permitted  to  examine 
the  witness,  and  afterwards  to  object  to  his  competency,  if  he 
should  dislike  his  testimony.  He  has  his  election,  to  admit  an 
interested  person  to  testify  against  him,  or  not ;  but  in  this,  as 
in  all  other  cases,  the  election  must  be  made  as  soon  as  the 
opportunity  to  make  it  is  presented  ;  and  failing  to  make  it  at 
that  time,  he  is  presumed  to  have  waived  it  for  ever.^  But  he  is 
not  prevented  from  taking  the  objection  at  any  time  during  the 
trial,  provided  it  is  taken  as  soon  as  the  interest  is  discovered.* 
Thus,  if  discovered  during  the  examination  in  chief  by  the  plain- 
tiff, it  is  not  too  late  for  the  defendant  to  take  the  objection.^ 

1  Wallace  v.  Twyman.  3  J.  J.  Marsh.  Belcher  v.  Magnay,  1  New  Pr.  Cas.  110 
459-4(51.     See  also  Owen  v.  Mann,  2  Day,     [Snow  v.  Batcliokler,  8  Gush.  513]. 

3yy    404 ;    Brown    v.   Lynch,    1    Paige,  *  Stone   v.  Blackburn,   1  Esp.  37  ;    1 

147i  107;  Allen  v.  Hawks,  13  Pick.  85,  Stark.  Evid.  124  ;  ShurtlefE  y.  Willard,  19 

per'siiaw,  (L  J.  ;  Scliillenger  u.  McCann,  Pick.  202.     Wliere  a  party  has  been  fully 

6  (ireenl.  364  ;  Kendall  v.  Field,  2  Shepl.  apprised  of  the  grounds  of  a  witness's  in- 

30  ;  Slielby  ".  Smitii,  2  A.  K.  iMarsh.  504.  competency  by  the   opening   speech  of 

The  cases"  in  which  a  mere  remedy  over  counsel,  or  the  examination  in  chief  of  the 

Bceins  to  iiave  been  tliought  suliicient  to  witness,  doubts  iiave  been  entertained  at 

equalize  the  interest  of  the  witness  are  Nisi   Priits,  whctlier  an  objection  to  the 

Martineau  o.  Woodland,  2  C  &  P.  65;  competency  of  a  witness  can  be  postponed. 

Banks    v.    Kain,    Id.    697;    Gregory   v.  1  Phil.  Evid.  154,  n.  (3). 

Dodge   14  Wend.  593.  *  Jacobs  v.  Laybourn,  11  M.  &  W.  085. 

2  Pond  V.  HartwcU,  17  Pick.  269,  272,  And  see  Yardley  v.  Arnold,  10  M.  &  W. 
per  Shaw,  C.  J.  141 ;  6  Jur.  718. 

8  Douelson  ".  Taylor,  8  Pick.  390,  392 ; 


CHAP,  n.] 


COMPETENCY   OF   WITNESSES. 


471 


But  if  it  is  not  discovered  until  after  the  trial  is  concluded,  a  new 
trial  ^vill  not,  for  that  cause  alone,  be  granted  ;  ^  unless  the  interest 
was  known  and  concealed  by  the  party  producing  the  witness.^ 
The  rule  on  this  subject,  in  criminal  and  civil  cases,  is  the  same.^ 
Formerly,  it  was  deemed  necessary  to  take  the  objection  to  the 
competency  of  a  witness  on  the  voir  dire  ;  and  if  once  sworn  in 
chief,  he  could  not  afterwards  be  objected  to,  on  the  ground  of 
interest.  But  the  strictness  of  this  rule  is  relaxed  ;.  and  the  objec- 
tion is  now  usually  taken  after  he  is  sworn  in  chief,  but  previous 
to  his  direct  examination.  It  is  in  the  discretion  of  the  judge  to 
permit  the  adverse  party  to  cross-examine  the  witness,  as  to  his 
interest,  after  he  has  been  examined  in  chief  ;  but  the  usual  course 
is  not  to  allow  questions  to  be  asked  upon  the  cross-examination, 
which  properly  belong  only  to  an  examination  upon  the  voir  dire.^ 
But  if,  notwithstanding  every  ineffectual  endeavor  to  exclude  the 
witness  on  the  ground  of  incompetency,  it  afterwards  should 
appear  incidentally,  in  the  course  of  the  trial,  that  the  witness  is 
interested,  his  testimony  will  be  stricken  out,  and  the  jury  will 
be  instructed  wholly  to  disregard  it.^  The  rule  in  equity  is  the 
same  as  at  laAV ;  ^  and  the  principle  applies  with  equal  force  to 
testimony  given  in  a  deposition  in  writing,  and  to  an  oral  exam- 
ination in  court.  In  either  case,  the  better  opinion  seems  to  be, 
that  if  the  objection  is  taken  as  soon  as  may  be  after  the  interest 


1  Turner  v.  Pearte,  1  T.  R.  717 ;  Jack- 
son V.  Jackson,  5  Cowen,  173. 

2  Niles  V.  Brackett,  15  Mass.  378. 

8  Commonwealth  v.  Green,  17  Mass. 
538  ;  Roscoe's  Crim.  Evid.  124. 

4  Howell  V.  Lock,  2  Campb.  14 ;  Odi- 
orne  v.  Winkley,  2  Gallis.  51 ;  Perigal  v. 
Nicholson,  1  Wightw.  64.  The  objection 
that  the  witness  is  the  real  plaintiff,  ought 
to  be  taken  on  the  voir  dire.  Dewdney 
V.  Palmer,  4  M.  &  W.  664 ;  s.  c.  7  Dowl. 
177. 

8  Davis  V.  Barr,  9  S.  &  R.  137 ;  Schil- 
l^nger  v.  McCann,  6  Greenl.  364 ;  Fisher 
I.  Willard,  13  Mass.  379  ;  Evans  v.  Eaton, 
1  Peters,  C.  C.  338;  Butler  v.  Tufts,  1 
Shcpl.  302;  Stout  v.  Wood,  1  Blackf.  71 ; 
Mitchell  V.  Mitchell,  11  G.  &  J.  388.  The 
same  rule  seems  applicable  to  all  the  in- 
struments of  evidence,  whether  oral  or 
written.  Scribner  v.  McLaughlin,  1  Al- 
len, 379;  and  see  Swift  v.  Dean,  6  Johns. 
523,  536;  Perigal  v.  Nicholson,  Wightw. 
63;  Howell  r.  Lock,  2  Campb.  64;  Need- 
ham  V.  Smith,  2  Vern.  464.  In  one  case, 
however,  where  the  examination  of  a  wit- 
ness was  concluded,  and  he  was  dismissed 


from  the  box,  but  was  afterwards  recalled 
by  the  judge,  for  the  purpose  of  asking 
him  a  question,  it  was  ruled  by  Gibbs, 
C.  J.,  that  it  was  then  too  late  to  object  to 
his  competency.  Beeching  v.  Gower,  1 
Holt's  Cas.  313 ;  and  see  Heely  v.  Barnes, 
4  Denio,  73.  And  in  chancery  it  is  held, 
that  where  a  witness  has  been  cross-ex- 
amined by  a  party,  with  full  knowledge 
of  an  objection  to  his  competency,  the 
court  will  not  allow  the  objection  to  be 
taken  at  the  hearing.  Flagg  v.  Mann,  2 
Sumn.  487. 

6  Swift  V.  Dean,  6  Johns.  523,  538; 
Needham  v.  Smith,  2  Vern.  463 ;  Vauglian 
V.  Worrall,  2  Swanst.  400.  In  this  case. 
Lord  Eldon  said,  that  no  attention  couhl 
be  given  to  the  evidence,  thougli  the  in- 
terest were  not  discovered  until  the  last 
question,  after  he  has  been  "  cross-exam- 
ined to  the  bone."  See  Greslev  on  Evid. 
234-236  ;  Rogers  v.  Dibble,  3  Paige,  238 ; 
Town  V.  Needham,  Id.  645,  552;  Harrison 
V.  Courtauld,  1  Russ.  &  M.  428  ;  Moor- 
house  V.  De  Passou,  G.  Cooper,  Ch.  Cas. 
300 ;  s.  c.  19  Ves.  433.  See  also  Jacobs 
V.  Laybourn,  7  Jur.  562. 


472  LAW   OF  EVIDENCE.  [PAET  m. 

is  discovered,  it  will  be  heard  ;  but  after  the  party  is  in  mora,  it 
comes  too  late.^  One  reason  for  requiring  the  objection  to  be 
made  thus  early  is,  that  the  other  party  may  have  opportunity  to 
remove  it  by  a  release  ;  which  is  always  allowed  to  be  done,  when 
the  objection  is  taken  at  any  time  before  the  examination  is 
completed.2  It  is  also  to  be  noted  as  a  rule,  applicable  to  all 
objections  to  the  reception  of  evidence,  that  the  ground  of  objec- 
tion must  be  distinctly  stated  at  the  time,  or  it  will  be  held  vague 
and  nugatory .2 

§  422.  Same  subject.  Where  the  objection  to  the  competency 
of  the  witness  arises  from  his  own  examination,  he  may  be  fur- 
ther interrogated  to  facts  tending  to  remove  the  objection,  though 
the  testimony  might,  on  other  grounds,  be  inadmissible.  When 
the  whole  ground  of  the  objection  comes  from  himself  only,  what 
he  says  must  be  taken  together  as  he  says  it.*  Thus,  where  his 
interest  appears,  from  his  own  testimony,  to  arise  from  a  written 
instrument,  which  is  not  produced,  he  may  also  testify  to  the 
contents  of  it ;  but  if  he  produces  the  instrument,  it  must  speak 
for  itself.^  So,  where  the  witness  for  a  chartered  company  stated 
that  he  had  been  a  member,  he  was  permitted  also  to  testify  that 
he  had  subsequently  been  disfranchised.^  So,  where  a  witness 
called  by  an  administrator  testified  that  he  was  one  of  the  heirs 
at  law,  he  was  also  permitted  to  testify  that  he  had  released  all 
his  interest  in  the  estate.'^  And,  generally,  a  witness  upon  an 
examination  in  court  as  to  his  interest  may  testify  to  the  contents 
of  any  contracts,  records,  or  documents  not  produced,  affecting 
the  question  of  his  interest.^    But  if  the  testimony  of  the  witness 

1  Donelson    v.   Taylor,   8    Pick.   390.  2  Tallman  v.  Diitcher,  7  Wend.  180 ; 

Where  the  testimony  is  by  deposition,  the  Doty  v.  Wilson,  14  Johns.  378;  Wake  v. 

objection,  if  tlie  interest  is  known,  ought  Lock,  5  C.  &  P.  454. 
regularly  to  be  taken  in  limine  ;  and  the  3  Camden  v.  Doremus,  3  Howard,  S.  C. 

cross-examination  siiould  be  made  de  bene  515,  530  ;  Elwood  v.  Deifendorf,  5  Barb. 

esse,  under  protest,  or  with  an  express  res-  S.  C.  308 ;  Carr  v.  Gale,  Daveis,  337. 
ervation  of  the  right  of  objection  at  the  *  Abrahams  v.  Bunn,  4  Burr,  2250,  per 

trial;  unless  the  interest  of  the  witness  is  Ld.  Mansfield;  Bank  of  Utica  r.  Meste- 

developed  incidetitally,  in  his  testimony  reau,  3  Barb.  Ch.  528. 
to  the  merits.     But  the  practice  on  this  5  Butler  v.  Carver,  2  Stark.  433.     See 

point  admits  of  considerable  latitmle,  in  also  Rex  v.  Gisburn,  15  East,  57. 
thediscretionof  the  judge.  United  States  »  Butchers'  Company  v.  Jones,  1  Esp. 

J-.  One  Case  of  Hair  Pencils,  1  Paine,  400  ;  160.       And    see    Bothara    v.    Swingler, 

Talbot  V.  Clark,   8  Pi(;k.  51  ;    Smith   v.  Peake's  Cas.  218. 

Sparrow,  11  Jur.  120;  The  Mohawk  Bank  '  Ingraham   v.  Dade,  Lond.   Sittings 

i;.  Atwater,  2  Paige,  64  ;  Ogle  y.  Pelaski,  after   Mich.  T.   1817;    1   C.   P.  234,  n.  ; 

1  Holt's  Cas.  485 ;  2  Tidd's  Pr.  812.     As  Wandless  i-.  Cawthorne,  B.  R.  Guildhall, 

to  the  mode  of  taking  the  objection  in  1829;  1  M.  &  M.  321,  n. 
chancery,  see  1  Iloffin.  Chan.  489 ;  Gass  »  Miller  i'.  The   IMariners'   Church,  7 

t;.  Stinson,  3  Sumu.  005.  Greeul.  61 ;  Fifield  v.  Smith,  8  Shepl.  383 ; 


CHAP,  n.]  COIMPETENCT  OF  WITNESSES.  473 

is  taken  upon  interrogatories  in  writing,  previously  filed  and 
served  on  the  adverse  party,  who  objects  to  his  competency  on 
the  ground  of  interest,  which  the  witness  confesses,  but  testifier 
that  it  has  been  released ;  the  release  must  be  produced  at  the 
trial,  that  the  court  may  judge  of  it.^ 

§  423.  Proof  of  interest.  The  mode  of  proving  the  interest  of  a 
witness  is  either  by  his  own  examination,  or  by  evidence  aliunde. 
B  it  whether  the  election  of  one  of  these  modes  will  preclude  the 
party  from  afterwards  resorting  to  the  other  is  not  clearly  settled 
by  the  authorities.  If  the  evidence  offered  aliunde  to  prove  tlie 
interest  is  rejected  as  inadmissible,  the  witness  may  then  be 
examined  on  the  voir  dire?  And  if  the  witness  on  the  voir  dire 
states  that  he  does  not  know,  or  leaves  it  doubtful  whether  he  is 
interested  or  not,  his  interest  may  be  shown  by  other  evidence.^ 
It  has  also  been  held,  that  a  resort  to  one  of  these  modes  to  prove 
the  interest  of  the  witness  on  one  ground  does  not  preclude  a 
resort  to  the  other  mode,  to  prove  the  interest  on  another 
ground.*  And  where  the  objection  to  the  competency  of  the 
witness  is  founded  upon  the  evidence  already  adduced  by  the 
party  offering  him,  this  has  been  adjudged  not  to  be  such  an 
election  of  the  mode  of  proof,  as  to  preclude  the  objector  from 
the  right  to  examine  the  witness  on  the  voir  dire.^  But,  subject 
to  these  modifications,  the  rule  recognized  and  adopted  by  the 
general  current  of  authorities  is,  that  where  the  objecting  party 
has  undertaken  to  prove  the  interest  of  the  witness,  by  interro- 
gating him  upon  the  voir  dire,  he  shall  not,  upon  failure  of  that 
mode,  resort  to  the  other  to  prove  facts,  the  existence  of  which 
was   known  when   the   witness  was  interrogated.^     The  party 

Sewell  V.  Stubbs,  1  C.  &  P.  73 ;  Quarter-  3  Shannon  v.  The  Commonwealth,  8 
man  t;.  Cox,8  C.  &  P.  97;  Luniss  v.  Row,  S.  &  R.  444;  Galbraith  v.  Galbraith,  6 
2  P.  &  D.  638;  Hays  v.  Richardson,  1  Watts,  112;  Bank  of  Columbia  v.  Ma- 
Gill  &  J.  366  ;  Stebbins  v.  Sackett,  5  Conn,  gruder,  6  Har.  &  J.  172. 
258  ;  Baxter  v.  Rodman,  3  Pick.  435.  The  *  Stebbins  v.  Sackett,  5  Conn.  258. 
case  of  Goodhay  i'.  Hendry,  1  Mo.  &  M.  5  Bridge  v.  Wellington,  1  Mass.  221, 
319,  apparently  contra,  is  opposed  by  Car-  222. 

lisle  V.  Eddy,  1  C.  &  P.  234,  and  by  Wand-  6  j^  the  old  books,  including  tlie  ear- 
less V.  Cawthorne,  1  Mo.  &  M.  321,  n.  Her  editions  of  Mr.  Starkie's  and" Mr.  Phil- 

1  Soutliard  v.  Wilson,  8  Shepl.  494 ;  lips's  Treatises  on  Evidence,  the  rule  is 
Hobart  v.  Bartlett,  6  Shepl.  429.  clearly  laid  down,  that,  after  an  examina- 

2  Main  v.  Newson,  Anthon's  Cas.  13.  tion  upon  the  voir  dire,  no  other  mode 
But  a  witness  cannot  be  excluded  by  of  proof  can  in  any  case  be  resorted  to  ; 
proof  of  his  own  admission  that  he  was  excepting  only  the  case  where  the  inter- 
interested  in  the  suit.  Bates  v.  Ryland,  est  was  developed  in  the  course  of  trial 
6  Alabama,  668 ;  Pierce  v.  Chase,  8  of  the  issue.  But  in  the  last  editions  of 
Mass.  487, 488 ;  Commonwealth  v.  Waite,  those  works, it  is  said,  that,"  if  the  witness 
6  Mass.  261 ;  George  V.  Stubbs,  13  Shepl.  discharged  himself  on  the  ro/j- rf/Ve,  the 
243.                                       '  party  who  objects  may  still  support  his 


474  LAW   OF  EVIDENCE.  [PAET  HI. 

appealing  to  the  conscience  of  the  witness,  offers  him  to  the 
court  as  a  credible  witness  ;  and  it  is  contrary  to  the  spirit  of  the 
law  of  evidence  to  permit  him  afterwards  to  say,  that  the  wit- 
ness is  not  worthy  to  be  believed.  It  would  also  violate  another 
rule,  by  its  tendency  to  raise  collateral  issues.  Nor  is  it  deemed 
reasonable  to  permit  a  party  to  sport  with  the  conscience  of  a 
witness,  when  he  has  other  proof  of  his  interest.  But  if  evidence 
of  his  interest  has  been  given  aliunde^  it  is  not  proper  to  examine 
the  witness,  in  order  to  explain  it  away.^ 

§  424.  Examination  upon  the  voir  dire.  A  witness  is  said  to  be 
examined  upon  the  voir  dire,  when  he  is  sworn  and  examined  as 
to  the  fact  whether  he  is  not  a  party  interested  in  the  cause.^ 
And  though  this  term  was  formerly  aud  more  strictly  applied 
only  to  the  case  where  the  witness  was  sworn  to  make  true  an- 
swers to  such  questions  as  the  court  might  put  to  him,  and  be- 
fore he  was  sworn  in  chief,  yet  it  is  now  extended  to  the 
preliminary  examination  to  his  interest,  whatever  may  have  been 
the  form  of  the  oath  under  which  the  inquiry  is  made. 

§  425.  Question  of  interest  preliminary  and  for  the  court.  The 
question  of  interest,  though  involving  facts,  is  still  a  preliminary 
question,  preceding,  in  its  nature,  the  admission  of  the  testimony 
to  the  jury.  It  is  therefore  to  be  determined  hy  the  court  alone, 
it  being  the  province  of  the  judge  and  not  of  the  jury,  in  the  first 
instance,  to  pass  upon  its  efficiency .^  If,  however,  the  question 
of  fact,  in  any  preliminary  inquiry,  —  such,  for  instance,  as  the 
proof  of  an  instrument  by  subscribing  witnesses,  —  is  decided  by 

objection  by  evidence  ; "  but  no  authority  ested,  his  testimony  may  well  be  stricken 

is  cited  for  tlie  position.     1  Stark.  Evid.  out,  without  violatinfj  any  rule.     l?rock- 

124  ;  Phil.  &  Am.  on  Evid.  149  ;  1  Phil,  bank  v.  Anderson,  7  Man.  &  Gr.  205,  313. 

Evid.  154.     Mr.  Starkie  had  previously  The  American  courts  have  followed  tlie 

added  these  words:  "as  part  of  his  own  old  English  rule,  as  stated  in  the  text, 

case"    (see   2    Stark.    Evid.   p.  756,    1st  Butler  v.  Butler,  3  Day,  214;    Stehbins 

ed.);  and  with  this  qualification  there-  v.  Sackett,  5  Conn.  258,  261;  Ciiance  y. 

mark  is  sujiported   by  authority,  and  is  Iline,  6  Conn.  231  ;  Welden  v.  Buck,  An- 

correct  in  principle.      The  question  of  thon's    Cas.  0 ;    Chatfield  v.  Lathrop,  6 

competency  is  a  collateral  question  ;  and  Pick.   418;    Evans   v.   Eaton,    1   Peters, 

ths  rule  is,  that  wlien  a  witness  is  asked  C.  C.  322;  Stewart  v.  Locke,  33  Maine, 

a  question  upon  a  collateral  point,  his  an-  87. 

swer  is  final,  and  cainiot  be  contradicted  ;  ^  Mott  v.  Hicks,  1  Cowen,  513  ;  Evans 
that  is,  no  collateral  evidence  is  adniissi-  v.  Gray,  1  Martin,  n.  s.  709. 
ble  for  that  pur])ose.     Harris  v.  Tippett,          2  Termes  de  la  Ley,  Verb.  Voyer  dire. 
2  Campb.  (537;  Philadcl]ihia  &  Trenton  And  see  Jacobs  (-•.  Laybourn,  11  M.  &  W. 
Co.    I'.    Stinii)Son,    14   Peters,   448,   461 ;  685,  where  the  nature  and  use  of  an  ex- 
Harris  I-.  Wilson,  7  Wend.   57;  Odiorne  amination  upon  the  co/rf/Zee  are  stated  and 
17.  Winkley,2  (Jallis.  5:);   Ilex  r.  Watson,  explained  by  Ld.  Abingor,  C.  B. 
2  Stark.  14!>-157.     But  if  the  evidence,  ^  Harris  w.  Wilson,  7  Wend.  67 ;  supra, 
subsequently  given   upon  the  matter  in  §  49. 
issue,  should  also  prove  the  witness  inter- 


CHAP,  n.]  COMPETENCY   OF   WITNESSES.  475 

the  judge,  and  the  same  question  of  fact  afterwards  recurs  in  the 
course  of  the  trial  upon  the  merits,  the  jury  are  not  precluded  by 
the  decision  of  the  judge,  but  may,  if  they  are  satisfied  upon  the 
evidence,  find  the  fact  the  other  way.^  In  determining  the  ques- 
tion of  interest,  where  the  evidence  is  derived  aliunde,  and  it 
depends  upon  the  decision  of  intricate  questions  of  fact,  the  judge 
may,  in  his  discretion,  take  the  opinion  of  the  jury  upon  them.2 
And  if  a  witness,  being  examined  on  the  voir  dire,  testifies  to 
facts  tending  to  prove  that  he  is  not  interested,  and  is  thereupon 
admitted  to  testify;  after  which  opposing  evidence  is  introduced, 
to  the  same  facts,  which  are  thus  left  in  doubt,  and  the  facts  are 
material  to  the  issue,  —  the  evidence  must  be  weighed  by  the  jury, 
and  if  they  thereupon  believe  the  witness  to  be  interested,  they 
must  lay  his  testimony  out  of  the  case.^ 

§  426.  Disqualification  removed  by  a  release.  The  competency 
of  a  witness,  disqualified  by  interest,  may  always  be  restored  hy  a 
proper  release.'^  If  it  consists  in  an  interest  vested  in  himself, 
he  may  divest  himself  of  it  by  a  release,  or  other  proper  convey- 
ance. If  it  consists  in  a  liability  over,  whether  to  the  party  call- 
ing him,  or  to  another  person,  it  may  be  released  by  the  person 
to  whom  he  is  liable.  A  general  release  of  all  actions  and  causes 
of  action  for  any  matter  or  thing,  which  has  happened  previous 
to  the  date  of  the  release,  will  discharge  the  witness  from  all  lia- 
bility consequent  upon  the  event  of  a  suit  then  existing.  Such 
a  release  from  the  drawer  to  the  acceptor  of  a  bill  of  exchange 
was  therefore  held  sufficient  to  render  him  a  competent  witness 
for  the  drawer,  in  an  action  then  pending  by  the  payee  against 
him  ;  for  the  transaction  was  already  passed,  which  was  to  lay 
the  foundation  of  the  future  liability  ;  and  upon  all  such  trans- 

1  Ross  V.  Gould,  5  Greenl.  204.  v.  Nantucket   Steamboat   Co.,  2  Story, 

2  See  mpra,  §  49.  16,  42.  And  see  Morris  v.  Thornton,  8 
8  Walker  v.  Sawyer,  13  N.  H.  191.  T.  R.  303  ;  Jackson  v.  Pratt,  10  Johns. 
*  Where  the  witness  produces  the  ro-  881  ;  Carlisle  v.  Eady,  1  C.  &  P.  234  ;  In- 

lease  from  his  own  possession,  as  part  of  gram  v.  Dada,  Id.  n. ;  Gondhay  i-.  Hen- 

his  testimony,  in  answer  to  a  question  put  dry,  1    Mood.    &   Malk.   319.     See   also 

to  him,  its   execution   needs   not  to  be  Southard  v.  Wilson,  8  Shepl.  494 ;  Hall  v. 

proved  by  the  subscribing  witnesses;  but  Steamboat  Co.,  13  Conn.  319.     [The  in- 

it  is  to  be  taken  as  part  of  liis  testimony,  strument  of  release  need  not  be  under  seal. 

If  the  question  is  asked  by  the  party  call-  Dunham  v.  Branch,  5  Cush.  558,  560.     A 

ing  the  witness,  who  thereupon  produce  technical  release,  to  make  an  interested 

the  release,  the  party  is  estopped  to  deny  witness  competent,  must  be  under  seal, 

that  it  is  a  valid  and  true  release.     But  Governor  v.  Daily,  14  Ala.  469.     A  re- 

where  the  release  is  produced  or  set  up  ceipt  in  full  of  all  demands,  not  under  seal, 

by  the  party  to  the  suit,  to  establish  his  does   not  render  a   witness    competent, 

own  title,  he  must  prove  its  execution  by  Dennett  v.  Lamson,  30  Maine,  223.] 
the  subscribing  witness.    Citizens'  Bank 


476 


LAW  OF  EVIDENCE. 


[PAUT  m. 


actions  and  inchoate  rights  such  a  release  will  operate.^  A  re- 
lease, to  qualify  a  witness,  must  be  given  before  the  testimony  is 
closed,  or  it  comes  too  late.  But  if  the  trial  is  not  over,  the  court 
will  permit  the  witness  to  be  re-examined,  after  he  is  released  ; 
and  it  will  generally  be  sufficient  to  ask  him  if  his  testimony, 
already  given,  is  true  ;  the  circumstances  under  which  it  has  been 
given  going  only  to  the  credibility .^ 

§  427.  "Who  must  release.  As  to  the  person  hy  whom  the  release 
should  be  given.,  it  is  obvious  that  it  must  be  by  the  party  holding 
the  interest  to  be  released,  or  by  some  person  duly  authorized  in 
his  behalf.  A  release  of  a  bond  debt  by  one  of  several  obligees, 
or  to  one  of  several  obligors,  will  operate  as  to  them  all.-^  So, 
where  several  had  agreed  to  bear  the  expense  of  a  joint  under- 
taking, in  preferring  a  petition  to  Parliament,  and  an  action  was 
brought  against  one  of  them,  another  of  the  contractors  was  held 
a  competent  witness  for  the  defendant,  after  being  released  by 
him ;  for  the  event  of  the  suit  could  at  most  only  render  him 
liable  to  the  defendant  for  his  contributory  share*  But  if  there 
is  a  joint  fund  or  property  to  be  directly  affected  by  the  result, 
the  same  reason  would  not  decisively  apply;  and  some  act  of 
divestment,  on  the  part  of  the  witness  himself,  would  be  neces- 
sary.^ Thus,  in  an  action  on  a  charter-party,  a  joint-owner  with 
the  plaintiff",  though  not  a  registered  owner,  is  not  a  competent 
witness  for  the  plaintiff,  unless  cross-releases  are  executed  be- 


1  Scott  V.  Lifford,  1  Campb.  249,  250 ; 
Cartwrijjht  v.  Williams,  2  Stark.  340. 

2  Wake  V.  Lock,  5  C.  &  P.  454  ;  Tall- 
iian  V.  Dutclier,  7  Wend.  180 ;  Doty  v. 
Wilson,  14  Johns.  378.  And  see  Clark 
V.  Carter,  4  JMonr,  207. 

8  Co.  Lit.  2;]2  a;  Choetham  v.  Ward, 
1  B.  &  P.  OoO.  So,  by  one  of  several  part- 
ners, or  joint  proprietors,  or  owners. 
Wliitaniore  v.  Waterliouse,  4  C.  &  P.  383; 
Hockk'ss  V.  Mitchell,  4  Esp.  86;  Bulkley 
V.  Dayton,  14  Jr)lins.  387  ;  Haley  v.  God- 
frey, 4  Slie])l.  305.  But  where  the  inter- 
est of  the  parties  to  the  record  is  several, 
a  release  by  one  of  them  only  is  not  suffi- 
cient. Betts  V.  Jones,  9  C.  &  P.  100. 
[Where  the  process  is  in  rem  against  a 
vessel,  to  recover  the  value  of  goods  lost 
or  damaged,  the  master  is  an  interested 
witness  ;  but  a  release  from  some  of  tlie 

fart-owne  "s  renders  him  competent.    The 
'eytona,  2  Curtis,  C.  C.  21.] 
*  Duke  V.  Pownall,  1  M.  &  Malk.  480  ; 
Ransom  v.  Keyes,  9  Cowen,  128.     So,  in 
other  cases  of  liability  to  contribution. 


Bayley  v.  Osborn,  2  Wend.  527  ;  Robert- 
son V.  Smith,  18  Johns.  459  ;  Gibbs  v.  Bry- 
ant, 1  Pick.  118;  Ames  v.  VVithington,  3 
N.  H.  115;  Carleton  v.  Witcher,  5  N. 
H.  196.  One  of  several  copartners, 
not  being  sued  )vitli  them,  may  be  ren- 
dered a  competent  witness  for  them  by 
tiieir  release.  Lefferts  v.  De  Mott,  21 
Wend.  136  {sed  vide  Cline  v.  Little,  6 
Blaekf.  486)  ;  but  qiKtre,  if  he  ought  not 
also  to  release  to  them  liis  interest  in 
tiie  assets  of  the  firm,  so  far  as  they 
may  be  affected  by  the  demand  in  con- 
troversy,    lb. 

6  Waite  V.  Merrill,  4  Greenl.  102 ;  Rich- 
ardson I'.  Freeman,  0  Greenl.  57  ;  1  Holt's 
Cas.  4.'>0,  n. ;  Anderson  v.  Brock,  3 
Greenl.  243.  The  heir  is  rendered  a  com- 
petent witness  for  the  administrator,  by 
releasing  to  the  latter  all  his  interest  in 
the  action  ;  provided  it  does  not  appear, 
that  there  is  any  real  estate  to  be  affected 
b}'  the  result.  Boynton  v.  Turner,  13 
Mass.  391. 


CHAP,  n.]  co:mpetency  of  witnesses.  477 

tween  tliem.^  A  release  by  an  infant  is  generally  sufficient  for 
this  purpose ;  for  it  may  be  only  voidable,  and  not  void ;  in 
■whicli  case,  a  stranger  shall  not  object  to  it.^  But  a  release  by  a 
guardian  ad  litem^^  or  by  a  prochem  amy,  or  by  an  attorney  of 
record,'*  is  not  good*  A  surety  may  always  render  the  principal 
a  competent  witness  for  himself,  by  a  release.^  And  it  seems 
sufficient,  if  only  the  costs  are  released.^ 

§  428.  Interests  not  removed  by  a  release.  Though  there  are  no 
interests  of  a  disqualif3-ing  nature  but  what  may,  in  some  man- 
ner, be  annihilated,'''  yet  there  are  some  which  cannot  he  reached 
hy  a  release.  Such  is  the  case  of  one  having  a  common  right,  as 
an  inhabitant  of  a  town  ;  for  a  release  by  him,  to  the  other  inhab- 
itants, will  not  render  him  a  competent  witness  for  one  of  them, 
to  maintain  the  common  right.^  So  where,  in  trover,  the  plain- 
tiff claimed  the  chattel  by  purchase  from  B.,  and  the  defendant 
claimed  it  under  a  purchase  from  W.,  who  had  previously  bought 
it  fi-om  B.,  it  was  held  that  a  release  to  B.  from  the  defendant 
would  not  render  him  a  competent  witness  for  the  latter  ;  for  the 
defendant's  remedy  was  not  against  B.,  but  against  W.  alone.^ 
And  in  the  case  of  a  covenant  real,  running  with  the  land,  a 
release  by  the  covenantee,  after  he  has  parted  with  the  estate,  is 
of  no  avail ;  no  person  but  the  present  owner  being  competent 
to  release  it.^'^  Where  the  action  is  against  the  surety  of  one  who 
has  since  become  bankrupt,  the  bankrupt  is  not  rendered  a  com- 
petent witness  for  the  surety,  by  a  release  from  him  alone  ; 
because  a  judgment  against  the  surety  would  still  give  him  a 
right  to  prove  under  the  commission.  The  surety  ought  also  to 
release  the  assignees  from  all  claim  on  the  bankrupt's  estate,  it 

1  Jackson  v.  Galloway,  8  C.  &  P.  480.     with  notice,  the  mortgagor  was  admitted 

*  Rogers  v.  Berry,  10  Johns.  132 ;  a  competent  witness  for  the  mortgagee, 
"Walker  v.  Ferrin,  4  Vt.  523.  the  latter  having  released  him  from  so 

3  Fraser    v.    Marsh,    2  Stark.    41  ;     much  of  the  debt  as  should  not  be  satisfied 

Walker  v.  Ferrin,  vb.  sup.  by  the  land  mortgaged,  and  covenanted 

*  Murray  v.  House,  11  Johns.  464 ;  to  resort  to  the  land  as  the  sole  fund  for 
Walker  i».  Ferrin,  iib.  sup.  payment  of  the  debt.     Howard  v.  Chad- 

6  Reed  v.  Boardman,  20  Pick.   441 ;  bourne,  5  Greenl.  15. 

Harmon  v.  Arthur,  1  Bail.  83;  Willard  v.  ^  Jacobson  v.  Fountain,  2  Johns.  170  ; 

Wickman,  7  Watts,  292.  Abby  v.   Goodrich,  3  Day,  433 ;   supra, 

6  Ferryman  v.  Steggal,  5  C.  &  P.  197.  §  405. 

See  also  Van  Shaack  v.  Stafford,  12  Pick,  ^  Radburn  v.  Morris,  4  Bing.  649. 

565.  10  Leighton  v.  Perkins,  2  N.  H.  427 ; 

■^  In  a  writ  of  entry  by  a  mortgagee,  Pile  v.  Benham,  3  Hayw.  176  [Field  v. 

the  tenant  claimed  under  a  deed  from  the  Snell,  4  Gush.  504,  606  ;  Clark  v.  Johnson, 

mortgagor,  subsequent  in  date,  but  prior  5  Day,  373  ;  Cunningham  v.  Knight,  1 

in  registration,  and  denied  notice  of  the  Barb.  399,  405]. 
mortgage.     To  prove  that  he  purchased 


478  LAW   OF  EVIDENCE.  [PAET  HI. 

being  vested  in  tliem ;  and  tlie  bankrupt  should  release  his 
claim  to  the  surplus. ^  So,  a  residuary  legatee  is  not  rendered  a 
competent  witness  for  the  executor,  who  sues  to  recover  a  debt 
due  to  the  testator,  merely  by  releasing  to  the  executor  his  claim 
to  that  debt ;  for,  if  the  action  fails,  the  estate  will  still  be  liable 
for  the  costs  to  the  plaintiff's  attorney,  or  to  the  executor.  The 
witness  must  also  release  the  residue  of  the  estate ;  or,  the  estate 
must  be  released  from  all  claim  for  the  costs.^ 

§  429.  Delivery  of  release  not  necessary.  It  is  not  necessary/  that 
the  release  be  actually  delivered  by  the  releasor  into  the  hands  of 
the  releasee.  It  may  be  deposited  in  court,  for  the  use  of  the 
absent  party .^  Or,  it  may  be  delivered  to  the  wife,  for  the  use 
of  the  husband.^  But  in  such  cases  it  has  been  held  necessary 
that  the  delivery  of  the  release  to  a  third  person  should  be  known 
to  the  witness  at  the  time  of  giving  his  testimony.^  The  objec- 
tion of  interest,  as  before  remarked,  proceeds  on  the  presumption 
that  it  may  bias  the  mind  of  the  witness  ;  but  this  presumption 
is  taken  away  by  proof  of  his  having  done  all  in  his  power  to  get 
rid  of  the  interest.^  It  has  even  been  held,  that  where  the  defend- 
ant has  suffered  an  interested  witness  to  be  examined,  on  the 
undertaking  of  the  plaintiff's  attorney  to  execute  a  release  to 
him  after  the  trial,  which,  after  a  verdict  for  the  plaintiff,  he 
refused  to  execute,  this  was  no  sufficient  cause  for  a  new  trial ; 
for  the  witness  had  a  remedy  on  the  undertaking.''  But  the  wit- 
ness, in  such  cases,  will  not  be  permitted  to  proceed  with  his 
testimony,  even  while  the  attorney  is  j)reparing  or  amending  the 
release,  without  the  consent  of  the  adverse  party.^ 

§  430.  Other  modes  of  restoring  competency.  There  are  other 
modes,  besides  a  release,  in  which  the  competency  of  an  interested 
witness  may  be  restored.  Some  of  these  modes,  to  be  adopted 
by  the  witness  himself,  have  already  been  adverted  to ;  ^  namely, 

'  Ferryman  v.   Stegfral,  8  Bing.  369.  *  Van  Deusen  v.  Frink,  15  Pick.  449 ; 

[An  insolvent  debtor,  who  lias  obtained  Peaceable  v.  Keep,  1  Yeates,  676. 
bis  discbarge,  is  a  competent  witness  for  ^  Seymour    v.    Strong,    4    Hill,    225. 

the  assignee,  on  his  giving  a  release  to  Whether  the  belief  of  the  witness  as  to 

the  assignee  of  all  claims  against  him  as  his   interest,   or    the    impression    under 

such  assignee.     Greene  o.Durfee,  6Cush.  which  he  testifies,  can  go  further  than  to 

362.]  affect  the  credibility  of  his  testimony, 

■•^  Baker  v.  Tyrwhitt,  4  Campb.  27.  quo-re ;  and  see  supra,  §§  387,  388,  419. 

8  Perry  v.  Fleming,  2  N.  C.  Law  Re-  ^  Goodtitle  v.   Welford,  1  Doug.  139, 

pos.  458;   Lily  v.   Kitzmillor,   1   Yeates,  141,  per  Ashhurst,  J. 
30;  Matthews  y.  Marchant,  3  Dev.  &  Hat.  ''  Hemming  p.  English,  1  Cr.  M.  &  R 

40  ;  Brown  v.  Brown,  5  Ala.  608.     Or,  it  568  ;  s.  c.  6  Tyrwh.  185. 
may  be  delivered  to  the  attorney.     Ste-  ^  Doty  v.  Wilson,  14  Johns.  378. 

venson  v.  Mudgett,  10  N.  H.  308.  »  Supra,  §  419. 


CHAP,  n.]  COMPETENCY  OF   WITNESSES.  479 

where  lie  has  assigned  liis  own  interest,  or  done  all  in  his  power 
to  assign  it ;  or,  where  he  refuses  to  accept  a  release  tendered  to 
him  by  another.  So,  where,  being  a  legatee  or  distributee,  he 
has  been  fully  paid.^  An  indorser  is  made  a  competent  witness 
for  the  indorsee,  by  striking  off  his  name  from  the  back  of  the 
note  or  bill ;  but  if  the  bill  is  drawn  in  sets,  it  must  appear  that 
his  name  is  erased  from  each  one  of  the  set,  even  though  one  of 
them  is  missing  and  is  supposed  to  be  lost ;  for  it  may  be  in  the 
hands  of  a  botia  fide  holder.^  A  guarantor,  also,  is  rendered  a 
competent  witness  for  the  creditor,  by  delivering  up  the  letter  of 
guaranty,  with  permission  to  destroy  it.^  And  this  may  be  done 
by  the  attorney  of  the  party,  his  relation  as  such  and  the  posses- 
sion of  the  paper  being  sufficient  to  justify  a  presumption  of 
authority  for  that  purpose.*  The  bail  or  surety  of  another  may 
be  rendered  a  competent  witness  for  him,  as  we  have  already 
seen,  by  substituting  another  person  in  his  stead  ;  which,  where 
the  stipulation  is  entered  into  in  any  judicial  proceeding,  as  in 
the  case  of  bail,  and  the  like,  the  court  will  order  upon  motion. 
The  same  may  be  done  by  depositing  in  court  a  sufficient  sum  of 
money  ;  or,  in  the  case  of  bail,  by  a  surrender  of  the  body  of  the 
principal.^  So,  where  the  liability,  which  would  have  rendered 
the  witness  incompetent,  is  discharged  by  the  operation  of  law ; 
as,  for  example,  by  the  bankrupt  or  the  insolvent  laws,  or  by  the 
statute  of  limitations.'^  Where,  in  trespass,  several  justifications 
are  set  up  in  bar,  one  of  wliich  is  a  prescriptive  or  customary 
right  in  all  the  inhabitants  of  a  certain  j^lace,  one  of  those  inhabi- 
tants may  be  rendered  a  competent  witness  for  the  defendant,  by 
his  waiving  that  branch  of  the  defence.^  In  trover  by  a  bailee,  he 
may  render  the  bailor  a  competent  witness  for  him,  by  agreeing 
to  allow  him,  at  all  events,  a  certain  sum  for  the  goods  lost.^ 
The  assignee  of  a  chose  in  action,  who,  having  commenced  a  suit 

>  Clark^  V.    Gannon,  Hv.  &  M.  31;  Pearcey  r.  Fleming,  5  C.  &  P.  503 ;  Lees 

Gebhardt  v.  Shindle,  15  S.  &  R.  •2:]5.  r.  Smith,  1  M.  &  Rob.  329 ;  Comstock  v. 

2  Steinmetz  v.  Currie,  1  Dall.  260.  Paie,  3  Rob.  (La.)  440;  Fraser  v.  Hard- 

8  Merchants'  Bank  v.  Spicer,  6  Wend,  ing,  3  Kerr,  94. 
543.  ®  Murray  v.   Judah,  6  Cowen,  484 

*  Ibid. ;  Watson  v.  McLaren,  19  Wend.  Ludlow  v.  Union  Ins.  Co.,  2  S.  &  R.  119 

557.  United    States   v.    Smith,   4   Day,   121 

5  Supra,  §  392,  n.  (1) ;  Bailey  r.  Hole,  Quimby  v.  Wroth,  3  H.  &  J.  249;  Mur- 

3  C.  &  P.  560;  8.  c.  1  Mood.  &  M.  289  ;  ray  v.  Marsh,  2  Hayw.  200. 
Leggett  V.  Boyd,  3  Wend.  376;  Tompkins  ^  Prewitt  v.  Tilly,  1  C.  &  P.  140. 

V.  Curtis,  3  Cowen,  251 ;  Grey  v.  Young,  ^  Maine  Stage  Co.  v.  Longley,  2  Shepl. 

1  Harper,  38 ;  Alien  v.  Hawks,  13  Pick.  444. 
79;  Beckley  v.  Freeman,  15  Pick.  468; 


480 


LAW   OF   EVIDENCE. 


[part  nr. 


upon  it  in  the  name  of  the  assignor,  has  afterwards  sold  and 
transferred  his  own  interest  to  a  stranger,  is  thereby  rendered  a 
competent  witness  for  the  plaintiff.^  But  the  interest  which  an 
informer  has  in  a  statute  penalty  is  held  not  assignable  for  that 
purpose.^  So,  the  interest  of  a  legatee  being  assigned,  he  is 
thereby  rendered  competent  to  prove  the  will ;  though  the  pay- 
ment is  only  secured  to  him  by  bond  which  is  not  yet  due.^  So, 
a  stockholder  in  any  money-corporation  may  be  rendered  a  com- 
petent witness  for  the  corporation,  by  a  transfer  of  his  stock, 
e.'ther  to  the  company  or  to  a  stranger ;  even  though  he  intends 
to  repossess  it,  and  has  assigned  it  merely  to  qualify  himself  to 
testify ;  provided  there  is  no  agreement  between  him  and  the 
assignee  or  purchaser  for  a  reconveyance.^  Where  a  witness 
was  liable  to  the  plaintiff's  attorney  for  the  costs,  and  the  attor- 
ney had  prepared  a  release,  in  order  to  restore  his  competency  in 
case  it  should  be  questioned,  but,  no  objection  being  made  to  the 
witness,  he  was  examined  for  the  pLaintiff  without  a  release,  this 
was  considered  as  a  gross  imposition  upon  the  court ;  and  in  a 
subsequent  action  by  the  attorney  against  the  witness,  for  his 
costs,  he  was  nonsuited.^  These  examples  are  deemed  sufficient 
for  the  purpose  of  illustrating  this  method  of  restoring  the  com- 
petency of  a  witness  disqualified  by  interest. 


1  Soulden  v.  Van  Rensselaer,  9  Wend. 
293. 

2  Commonwealth  v.  Hargesheimer,  1 
Ailim.  41.3. 

8  Mcllroy  v.  Mcllroy,  1  Rawie,  423. 
*  Gilbert  v.  Manchester  Iron  Co.,  11 
Wend.  627;  Utica  Ins.  Co.  v.  Cadwell,  3 


Wend.  296 ;  Stall  v.  The  Catskill  Bank, 
18  Wend.  466;  Bank  of  Utica  v.  Smalley, 
2  Cowen,  770;  Bell  v.  Hull,  &c.  Railway 
Co.,  6  M.  &  W.  701  ;  Illinois  Ins.  Co.  v. 
Marseilles  Co.,  1  Gilm.  236;  Union  Bank 
V.  Owen,  4  Humph.  388. 

*  Williams  v.  Goodwin,  11  Moore,  342. 


CHAP,  ni.]  EXAMINATION   OF  WITNESSES.  481 


CHAPTER  m. 

OF  THE  EXAMINATION  OF  WITNESSES. 

§  431.  Examination  of  witnesses.  Having  thus  treated  of  the 
means  of  procuring  the  attendance  of  witnesses,  and  of  their 
competency,  we  come  now  to  consider  the  manner  in  which  they 
are  to  be  examined.  And  here,  in  the  first  place,  it  is  to  be  ob- 
served, that  the  subject  lies  chiefly  in  the  discretion  of  the  judge, 
before  whom  the  cause  is  tried,  it  being  from  its  very  nature 
susceptible  of  but  few  positive  and  stringent  rules.  The  great 
object  is  to  elicit  the  truth  from  the  witness ;  but  the  character, 
intelligence,  moral  courage,  bias,  memory,  and  other  circum- 
stances of  witnesses  are  so  various,  as  to  require  almost  equal 
variety  in  the  manner  of  interrogation,  and  the  degree  of  its  in- 
tensity, to  attain  that  end.  This  manner  and  degree,  therefore, 
as  well  as  the  other  circumstances  of  the  trial,  must  necessarily 
be  left  somewhat  at  large,  subject  to  the  few  general  rules  which 
we  shall  proceed  to  state  ;  remarking  only,  that  wherever  any 
matter  is  left  to  the  discretion  of  one  judge,  his  decision  is  not 
subject  to  be  reversed  or  revised  by  another. 

§  432.  "Whether  separately,  a  matter  of  discretion  with  the  court 
If  the  judge  deems  it  essential  to  the  discovery  of  truth,  that  the 
witnesses  should  be  examined  out  of  the  hearing  of  each  other^  he 
will  so  order  it.  This  order,  upon  the  motion  or  suggestion  of 
either  party,  is  rarely  withheld  ;  but,  by  the  weight  of  authority, 
the  party  does  not  seem  entitled  to  it  as  a  matter  of  right.^     The 

1  Tn  Rex  v.  Cooke,  13  Howell,  St.  Tr.  dividantnr  testes  luijusmodi,  donee  ipsi 
348,  it  was  declared  by  Lord  C.  J.  Treby  deposucrint  quicquid  velint,  ita  quod  die- 
to  be  grantable  of  favor  onl}',  at  the  dis-  turn  unius  non  doeebit  aut  concitavit 
crei  ion  of  the  court,  and  this  opinion  was  eorum  alium  ad  consimiliter  testifican- 
followed  by  Lord  C.  J.  Holt,  in  TJex  v.  duni."  Fortesc.  De  Laud.  Leg.  Aiigl. 
Vaughan,  Id.  494,  and  by  Sir  Michael  c.  26.  Tliis,  however,  does  not  necessarily 
Foster,  in  Rex  v.  Goodere,  17  Howell,  St.  exclude  the  right  of  the  court  to  deter- 
Tr.  1015.  See  also  1  Stark.  P^vid.  163;  mine  wlicther  tliere  is  anj' need  of  a  sepa- 
Beanion  v.  Ellice,  4  C.  &  P.  585,  per  Taun-  rate  examination.  Mr.  Phillips  states  it 
ton,  J.;  The  State  y.  Sparrow,  3  Murphy,  only  as  the  uniform  course  of  practice, 
487.  The  rule  is  stated  by  Fortescue,  in  that  "the  court,  on  tlie  application  of 
these  words  :   "Et  si  uecessitas  exegerit,  counsel,  will  order  the  witnesses  on  both 

VOL.  I.  31 


482 


LAW   OF  EVIDENCE. 


[part  m. 


course  in  such  cases  is  either  to  require  the  names  of  the  wit- 
nesses to  be  stated  by  the  counsel  of  the  respective  parties,  by 
whom  they  were  summoned,  and  to  direct  the  sheriff  to  keep 
them  in  a  Sseparate  room  until  they  are  called  for  ;  or,  more  usually, 
to  cause  them  to  withdraw,  by  an  order  from  the  bench,  accompa- 
nied with  notice,  that  if  they  remain  they  will  not  be  examined. 
In  the  latter  case,  if  a  witness  remains  in  court  in  violation  of  the 
order  even  by  mistake,  it  is  in  the  discretion  of  the  judge  whether 
or  not  he  shall  be  examined.^  The  course  formerly  was  to  exclude 
him ;  and  this  is  still  the  inflexible  rule  in  the  exchequer  in 
revenue  cases,  in  order  to  prevent  any  imputation  of  unfairness 
in  proceedings  between  the  crown  and  the  subject.  But  with  this 
exception,  the  rule  in  criminal  and  civil  cases  is  the  same.^  But 
an  attorney  in  the  cause,  whose  personal  attendance  in  court  is 
necessary,  is  usually  excepted  from  the  order  to  withdraw.^  The 
right  of  excluding  witnesses  for  disobedience  to  such  an  order, 
though  well  established,  is  rarely  exercised  in  America  ;  ^  but  the 
witness  is  punishable  for  the  contempt. 


sides  to  withdraw."  2  Phil.  Evid.  395. 
And  see,  accordingly,  Williams  v.  Hullie, 
1  Sid.  131 ;  Swift  on  Evid.  512.  In  Tay- 
lor V.  Lawson,  3  C.  &  P.  543,  Best,  C.  J., 
regretted  that  the  rule  of  parliamentary 
practice,  which  excludes  all  witnesses 
but  the  one  under  examination,  was  not 
universally  adopted.  But  in  Southey  v. 
Kash,  7  C.  &  P.  032,  Alderson,  B.,  ex- 
pressly recognized  it  as  "  the  right  of 
either  party,  at  any  moment,  to  require 
that  the  unexamined  witnesses  shall  leave 
the  court."  It  is  a  general  rule  in  the 
Scotch  law,  that  witnesses  should  be  ex- 
amined separately ;  and  it  is  founded  on 
the  importance  of  having  the  story  of 
each  witness  fresh  from  his  own  recol- 
lection, unmingle<l  with  the  impression 
received  from  liearing  the  testimony  of 
otliers  in  the  same  case.  To  this  rule,  an 
exception  is  allowed  in  the  case  of  medi- 
cal witnesses  ;  but  even  those,  on  matters 
of  medical  oi)inion,  are  examined  apart 
from  eacli  otlier.  (In  general,  a  witness 
ought  to  he  excluded  while  an  argument 
is  going  on  as  to  his  evidence.  Per  Coler- 
idge, .1..  Heg.  I'.  IMuri.liy,  8  C.  &  P.  307.] 
See  Alison's  Practice,  pp.  542-545;  Tait 
on  Evid.  420  [Nelson  (•.  State,  2  Swan, 
237;  Benaway  c.  Conyne,  3  Chand.  214. 
The  rule  does  not  extend  to  the  party, 
who  has  a  right  to  remain  in  court  for 
the  purpose  of  instructing  counsel.  Selfe 
V.  Isaacson,  1  F.  &  F.  11)4  ;  Charnock  v. 
Devings,  3  C.  &  K.  378.) 


1  It  has,  however,  been  held,  that,  if 
the  witness  remains  in  court,  in  disobe- 
dience of  its  order,  his  testimony  cannot, 
on  that  ground  alone,  be  excluded;  but 
that  it  is  matter  for  observation  on  his 
evidence,  t'handler  v.  Home,  2  M.  & 
Rob.  423  [Cobbett  i-.  Hudson,  1  E.  &  B. 
14].  As  to  the  rule  in  the  text,  see  The 
State  V.  Brookshire,  2  Ala.  303,  ace. 

2  Attorney-General  v.  Bulpit,  9  Price, 
4;  Parker  r.  Mc William,  G  Bing.  G83;  s.  c. 
4  Moore  &  Pavne,  480 ;  Thomas  v.  David, 
7  C.  &  P.  350; "Rex  -;.  Colley,  1  M.  &  Malk. 
329;  Beamon  v.  Ellice,  4  C.  &  P.  585,  and 
n.  {b)  [McLean  v.  State,  16  Ala.  (172]. 

»  Everett  v.  Lowdham,  5  C.  &  P.  91 ; 
Pomeroy  v.  Badderley,  Ky.  &  M.  430. 
[So  it  is  ordinarily  with  experts,  and  wit- 
nesses called  as  to  character,  &c.  And 
in  those  States  in  which  parties  are  made 
competent  witnesses,  it  would  seem  that 
the  order  of  exclusion  should  not  include 
them ;  and  it  is  the  better  practice  as  a 
general  rule  in  those  States,  so  far  as  it 
is  known  to  be  established,  when  the  wit- 
nesses in  a  case  are  ordered  to  withdraw, 
to  except  parties  from  the  order.  Ante, 
n.  to  preceding  page.] 

*  See  Anon.,  1  Hill,  254,  256;  The 
State  V.  Sparrow,  3  Murph.  487;  The 
State  V.  Brookshire,  2  Ala.  303;  Dyer  v. 
Morris,  4  Mo.  214;  Keath  v.  Wilson,  6 
Mo.  435  [Pleasant  v.  State,  15  Ark.  624; 
Sartorious  v.  State,  24  Miss.  002;  Porter 
V.  State,  2  Carter,  435]. 


CHAP,  m.]  EXAMINATIOX   OF   WITNESSES.  483 

§  433.  Direct  examination.  When  a  witness  has  been  duly 
sworn,  and  his  competency  is  settled,  if  objected  to,^  he  is  first 
examined  by  the  party  producing  him  ;  which  is  called  his  direct 
examination.  He  is  afterwards  examined  to  the  same  matters  by 
the  adverse  party  ;  which  is  called  his  cross-examination.  These 
examinations  are  conducted  orally  in  open  court,  under  the  regu- 
lation and  order  of  the  judge,  and  in  his  presence  and  that  of  the 
jury,  and  of  the  parties  and  their  counsel. 

§  484.  Leading  questions  not  permissible.  In  the  direct  examina- 
tion of  a  witness,  it  is  not  allowed  to  put  to  him  what  are  termed 
leading  questions  ;  that  is,  questions  which  suggest  to  the  wit- 
ness the  answer  desired.^  The  rule  is  to  be  understood  in  a 
reasonable  sense  ;  for  if  it  were  not  allowed  to  approach  the 
points  at  issue  by  such  questions,  the  examinations  would  be 
most  inconveniently  protracted.  To  abridge  the  proceedings, 
and  bring  the  witness  as  soon  as  possible  to  the  material  points 
on  which  he  is  to  speak,  the  counsel  may  lead  him  on  to  that  length, 
and  may  recapitulate  to  him  thfe  acknowledged  facts  of  the  case 
which  have  been  already  established.  The  rule,  therefore,  is  not 
applied  to  that  part  of  the  examination,  which  is  merely  introduc- 
tory of  that  which  is  material.  Questions  are  also  objectionable, 
as  leading,  which,  embodying  a  material  fact,  admit  of  an  answer 
by  a  simple  negative  or  affirmative.  An  argumentative  or  preg- 
nant course  of  interrogation  is  as  faulty  as  the  like  course  in  plead- 
ing. The  interrogatory  must  not  assume  facts  to  have  been 
proved,  which  have  not  been  proved ;  nor,  that  particular  answers 
have  been  given,  which  have  not  been  given.^  The  witness,  ex- 
cept in  certain  cases  hereafter  to  be  mentioned,  is  to  be  examined 
only  to  matters  of  fact  within  his  own  knowledge,  whether  they 
consist  of  words  or  actions ;  and  to  these  matters  he  should  in 
general  be  plainly,  directly,  and  distinctly  interrogated.     Infer- 

*  The  course  in  the   Scotch  courts,  rison  v.  Rowan,  3  Washingt.  580 ;  Parkin 

after  a  witness  is  sworn,  is,  first  to  exam-  v.  Moon,  7  C.  &  P.  408 ;  Alison's  Practice, 

ine  him  in  inilia/ibus, — namely,  whether  545;  Tait  on  Evid.  427  [Page  v.  Parker, 

he  has  been  instructed  what  to  say,  or  40  N.  H.  47.     A  question  which  calls  for 

has  received  or  has  been  promised  any  a  negative  or  affirmative  answer  is  not 

good  deed  for  what  he  is  to  say,  or  bears  leading,  unless  it  suggests  which.    Spear 

any  ill-will  to  the  adverse  party,  or  has  t;.  Richardson,  37  N.   H.  26.      See  also 

any  interest  in  the  cause  or  concern  in  Wilson  v.  McCullojjgh,  23  Penn.  St.  440; 

conducting  it;  together  with  his  age,  and  Kemmerer  v.  Edelman,  Id.  143]. 
whether  he  is  married  or  not,  and  the  ^  Hill  v.  Coombe,  1  Stark.  Evid.  163, 

degree  of  his  relationship  to  the  party  n.  {qq) ;    Handley  v.  Ward,  Id. ;    Turney 

adducing  him.     Tait  on  Evid.  424.  v.  The  State,  8  Sm.  &  Marsh.  104  [Car- 

'^  Snyder  v.  Snyder,  6  Binn.  483;  Har-  penter  v.  Ambroson,  20  111.  170]. 


484  LAW   OF  EVIDENCE.  [PAKT  HI. 

ences  or  conclusions,  which  may  be  drawn  from  facts,  are  ordi- 
narily to  be  drawn  by  the  jury  alone  ;  except  where  the  conclusion 
is  an  inference  of  skill  and  judgment ;  in  which  case  it  may  be 
drawn  by  an  expert,  and  testified  by  him  to  the  jury.^ 

§  435.  Exceptions.  In  some  cases,  however,  leading  questions 
are  permitted,  even  in  a  direct  examination,  —  namely,  where  the 
witness  appears  to  be  hostile  to  the  party  producing  him,  or  in  the 
interest  of  the  other  party,  or  unwilling  to  give  evidence  ;2  or 
where  an  omission  in  his  testimony  is  evidently  caused  by  want 
of  recollection,  which  a  suggestion  may  assist.  Thus,  where  the 
witness  stated,  that  he  could  not  recollect  the  names  of  the  com- 
ponent members  of  a  firm,  so  as  to  repeat  them  without  sugges- 
tion, but  thought  he  might  possibly  recollect  them  if  suggested  to 
him,  this  was  permitted  to  be  done.^  So,  where  the  transaction 
involves  numerous  items  or  dates.  So,  where,  from  the  nature 
of  the  case,  the  mind  of  the  witness  cannot  be  directed  to  the 
subject  of  inquiry,  without  a  particular  specification  of  it ;  as, 
where  he  is  called  to  contradict  another,  as  to  the  contents  of 
a  letter  which  is  lost,  and  cannot,  without  suggestion,  recollect 
all  its  contents,  the  particular  passage  may  be  suggested  to  him.* 
So,  where  a  witness  is  called  to  contradict  another,  who  had 
stated,  that  such  and  such  expressions  were  used,  or  the  like, 
counsel  are  sometimes  permitted  to  ask,  whether  those  particular 
expressions  were  used,  or  those  things  said,  instead  of  asking  the 
witness  to  state  what  was  said.^  Where  the  witness  stands  in  a 
situation,  which  of  necessity  makes  him  adverse  to  the  party  call- 
ing him,  as,  for  example,  on  the  trial  of  an  issue  out  of  chancery, 
with  power  to  the  plaintiff  to  examine  the  defendant  himself  as  a 
witness,  he  may  be  cross-examined,  as  a  matter  of  right.^     Indeed, 

1  1  Stark.  Evid.  152;  Goodtltle  d.  Re-  »  Acerro  et  al.  v.  Petroni,  1  Stark.  100, 
vett  V.  Braliain,  4  T.  11.  497.     [The  pre-     per  Ld.  EUenborough. 

siding  judge  may,  of  course,  interrogate  *  Courteen   v.  Touse,  1  Canipb.  43; 

the  witnesses  in  any  form  and  to  any  Edmonds  v.  Walter,  3  Stark.  7. 
extent  lie   may  deem  important  to  the  ^  1  Stark.  Evid.  152.     Mr.  Plii'.lips  is 

end?  of  justice.    Commonwealtli  v.  Gala-  of  opinion  that  the  regular  mode  r.hoidd 

van,  9  Allen,  271.]  first  be  exhausted  in  such  cases,  before 

2  Clarke  v.  Saffcrv,  Ry.  &  M.  126,  per  lending  questions  are  resorted  to.  riiil. 
Best,  0.  J.  ;  Reg.  v.  Chapman,  8  C.  &  P.  &  Am.  on  Evid.  pp.  8'JO,  891 ;  2  Phil. 
558;    Reg.  r.  Rail,  Id.  745;    Reg.  i'.  Mur-  Evid.  404,  405. 

phy,  Id.  297;  Hank  of  North.  Liberties  «  Clarke   r.   Saffery,  Ry.  &  M.  126. 

V.  Davis,  6  Watts  &  Serg.  285;  Towns  v.  The  policy  of  these  rules,  as  well  as  of 

Alford,  2  Ala.  378.     Leading  questions  almost  all  other  rules  of  the  common  law 

are    not   allowed   in    Scotland,   even    in  on   the  subject  of   evidence,  is   contro- 

cross-c.xamining.      Tait    on    Evid.    427  ;  verted  in  the  Rationale  of  Judicial  Evi 

Alison's  Practice,  645.  dence,  by  Jeremy  Beutham,  —  "a learned 


CHAP,  m.] 


EXAMINATION  OF   "WITNESSES. 


485 


when  and  under  what  circumstances  a  leading  question  may  be 
put,  is  a  matter  resting  in  the  sound  discretion  of  the  court,  and 
not  a  matter  which  can  be  assigned  for  error.^ 

§  436.  "Witness  may  assist  his  memory.  Though  a  witness  can 
testify  only  to  such  facts  as  are  within  his  own  knowledge  and 
recollection,  yet  he  is  permitted  to  refresh  and  assist  his  memory^ 
hy  the  use  of  a  written  instrument,  memorandum,  or  entry  in  a 
book,  and  may  be  compelled  to  do  so,  if  the  writing  is  present  in 
court. ^  It  does  not  seem  to  be  necessary  that  the  writing  should 
have  been  made  by  the  witness  himself,  nor  that  it  should  be  an 
original  writing,  provided,  after  inspecting  it,  he  can  speak  to  the 
facts  from  his  own  recollection.^     So,  also,  where  the  witness 


writer,  who  has  devoted  too  much  of  his 
time  to  the  theory  of  jurisprudence,  to 
know  mucii  of  the  practical  consequences 
of  the  doctrines  he  has  publislied  to  the 
world."  Per  Best,  C.  J.^  in  Hovill  v. 
Steplienson,  5  Bing.  493. 

1  [A  witness  \i^io  denies  his  own  cer- 
tificate, or  states  that  it  was  coUusively 
made,  or  in  any  other  mode  shows  an 
interest  of  feeling  for  tJie  party  opposed 
to  the  one  calling  him,  may  be  exam- 
ined in  the  usual  mode  of  cross-examina- 
tion. Martin  i*.  Travellers'  Ins.  Co.,  1  F. 
&  F.  505.]  Moody  v.  Rowell,  17  Pick.  498. 
In  this  case  the  law  on  this  point  was 
thus  stated  by  tiie  learned  Chief  Justice  : 
"  The  court  have  no  doubt  that  it  is 
within  the  discretion  of  a  judge  at  the 
trial,  under  particular  circumstances,  to 
permit  a  leading  question  to  be  put  to 
one's  own  witness ;  as  when  he  is  mani- 
festly reluctant  and  hostile  to  the  inter- 
est of  the  party  calling  him,  or  where  he 
has  exhausted  ins  memory,  without  stat- 
ing the  particular  required,  where  it  is  a 
proper  name,  or  other  fact  which  cannot 
be  significantly  pointed  to  by  a  general 
interrogatory,  or  where  the  witness  is  a 
child  of  tender  years,  whose  attention 
can  be  called  to  the  matter  required,  only 
by  a  pointed  or  leading  question.  So  a 
judge  may,  in  his  discretion,  prohibit 
certain  leading  questions  from  being  put 
to  an  adversary's  witness,  where  the  wit- 
ness shows  a  strong  interest  orbias  in  favor 
of  the  cross-examining  party,  and  needs 
only  an  intimation,  to  say  whatever  is 
most  favorable  to  that  party.  The  wit- 
ness may  have  purposely  concealed  such 
bias  in  favor  of  one  party,  to  induce  the 
other  to  call  him  and  make  him  his  wit- 
ness ;  or  the  party  calling  him  may  be 
compelled  to  do  so,  to  prove  some  single 
fact  necessary  to  his  case.     This  discre- 


tionary power  to  vary  the  general  rule 
is  to  be  exercised  only  so  far  as  the  pur- 
poses of  justice  plainly  require  it,  and  is 
to  be  regulated  by  the  circumstances  of 
each  case."  And  see  Donnell  v.  Jones, 
13  Ala.  490  [Walker  v.  Dunspaugh,  20 
N.  Y.  (6  Smith)  170;  Lawdon  v.  Lawdon, 
5  Ir.  L.  R.  N.  s.  27.  But  when  it  is  so 
exercised  as  to  deprive  the  party  of  im- 
portant evidence,  the  question  may  be 
raised  on  appeal.  Gunter  v.  Watson,  4 
Jones,  Law,  455]. 

2  Reed  v.  Boardman,  20  Pick.  441. 
[In  all  cases  where  accounts  are  multitu- 
dinous, the  rule  as  to  personal  knowledge 
is  relaxed.  He  must  be  permitted  to 
put  tlie  items  into  an  account,  and  to 
refresh  his  recollection  by  means  of 
other  accounts  and  papers  as  to  the 
items.  In  a  long  account  of  sales,  a 
party  rarely  recollects  all  the  items  ;  but 
he  can  be  perfectly  certain  from  his 
mode  of  business,  on  finding  the  entries 
in  his  books,  that  the  charges  were  cor- 
rectly made.  Alleghany  Ins.  Co.  v.  Han- 
ion,  Sup.  Ct.  Pa.,  Leg.  Int.  1874,  p.  372. 
Ante,  §  93.] 

3  Doe  V.  Perkins,  3  T.  R.  749,  ex- 
pounded in  Rex  v.  St.  Martin's,  Leices- 
ter. 2  Ad.  &  El.  215;  Burton  v.  Plummer, 
Id.  341 ;  Burroughs  v.  Martin,  2  Campb. 
112;  Duchess  of  Kingston's  case,  20 
Howell's  St.  Tr.  619;  Henry  v.  Lee,  2 
Chitty,  124;  Rambert  v.  Cohen,  4  Esp. 
213.  In  Meagoe  v.  Simmons,  2  C.  &  P. 
75,  Lord  Tenterden  observed,  that  the 
usual  course  was  not  to  permit  the  wit- 
ness to  refresh  his  memory  from  any 
paper  not  of  his  own  writing.  And  so  is 
the  Scotch  practice.  Tait  on  P>id.  133. 
But  a  witness  has  been  allowed  to  re- 
fresh his  memory  from  the  notes  of  his 
testimony,  taken  by  counsel  at  a  former 
trial.    Laws  v.  Reed,  2  Lewin,  Cr.  Cas. 


486  LAW    OF   EVIDENCE.  [PAET  HI. 

recollects  that  he  saw  the  paper  while  the  facts  were  fresh  in  his 
memory,  and  remembers  that  he  then  knew  that  the  particulars 
therein  mentioned  were  correctly  stated.^  And  it  is  not  neces- 
sary that  the  writing  thus  used  to  refresh  the  memory  should 
itself  be  admissible  in  evidence  ;  for  if  inadmissible  in  itself,  as 
for  want  of  a  stamp,  it  may  still  be  referred  to  by  the  witness.^ 
But  where  the  witness  neither  recollects  the  fact,  nor  remembers 
to  have  recognized  the  written  statement  as  true,  and  the  writ- 
ing was  not  made  by  him,  his  testimony,  so  far  as  it  is  founded 
upon  the  written  paper,  is  but  hearsay ;  and  a  witness  can  no 
more  be  permitted  to  give  evidence  of  his  inference  from  what  a 
third  person  has  written,  than  from  what  a  third  person  has  said.^ 
§  437.  "When  ■writings  may  be  used  to  assist  memory.  The  cases 
in  which  writings  are  permitted  to  be  used  for  this  purpose  may 
be  divided  into  three  classes.  (1.)  Where  the  writing  is  used 
only  for  the  purpose  of  assisting  the  memory  of  the  witness.  In 
this  case,  it  does  not  seem  necessary  that  the  writing  should  be 
produced  in  court,^  though  its  absence  may  afford  matter  of 
observation  to  the  jury  ;  for  the  witness  at  last  testifies  from  his 
own  recollection.  (2.)  Where  the  witness  recollects  having 
seen  the  writing  before,  and  though  he  has  now  no  independent 
recollection  of  the  facts  mentioned  in  it,  yet  he  remembers  that, 
at  the  time  he  saw  it,  he  knew  the  contents  to  be  correct.  In 
this  case,  the  writing  itself  must  be  produced  in  court,  in  order 
that  the  other  i)arty  may  cross-examine  ;  not  that  such  writing 
is  thereby  made  evidence  of  itself,  but  that  the  other  party  may 

lo2.      And  from  his  deposition.      Smith  copy  of  the  deposition.     George  v.  Joy, 

V.  Morgan,  2  M.  &  Rob.  259.     And  from  10  N.  H.  544]. 

a  printed  copy  of  his  report.  Home  v.  ^  Burrough  v.  Martin,  2  Campb.  112; 
Mackenzie,  6  C.  &  Fin.  (328.  And  from  Burton  c.  Flummer,  2  Ad.  &  El.  343,  per 
notes  of  another  person's  evidence,  at  a  Ld.  Denman ;  Jacob  v.  Lindsay.  1  East, 
former  trial  examined  by  him  during  40(3 ;  Downer  v.  Rowell,  24  Vt.  343.  But 
that  trial.  Reg.  i".  Philpots,  5  Co.x,  Cr.  C.  see  Butler  v.  Benson,  1  Barb.  Ch.  526 
32!).  Or,  witliin  two  days  afterwards.  [Seavy  v.  Dearborn,  19  N.  H.  351;  Web- 
lb.,  per  Erie,  J.  But  the  counsel  for  the  ster  v.  Clark,  10  Foster,  245;  State  v. 
prisoner,  on  cross  e.xamining  a  witness  Col  well,  3  R.  I.  132;  Green  v.  Caulk,  16 
for  the  prosecution,  is  not  entitled  to  put  Md.  556]. 

the  deposition  of  the   witness    into   his  ^  Maugham  w.  Hubbard,  8  B.  &  C  14; 

hand,  for  the  purpose  of  refreshing  his  Kensington  v.  Inglis,  8  East,  273;  supra, 

memory,  without  giving  it  in  evidence.  §§  00,  228  [and  post,  §§  403-46(3]. 
Reg.  V.  Ford,  Id.   184  [s.  c.  4  Eng.  Law  3  2  Phil.  Evid.  413. 

&  Eq.  570;  State  v.  Lull,  37  Maine,  240.  *  Kensington   v.   Inglis,  8  East,  273; 

But  where  a  witness,  whose  deposition  Burton   v.   Plummer,  2   Ad.  &  El.  ;341. 

liad  been  previously  taken,  was  asked  in  [But  see  Harrison  v.  Middleton,  11  Gratt. 

cross-examination  what  he  had  stated  in  627  ;    Howlaud  v.  Sheriff,  &c.,  5  Sandf. 

the  deposition,  he  was  permitted  to  re-  219.J 
fresh  his  recollection  by  referring  to  u 


CHAP,  in.] 


EXAMINATION  OF  WITNESSES. 


487 


have  the  benefit  of  the  witness's  refreshing  his  memory  by  every 
part.^  And  for  the  same  reason,  a  witness  is  not  permitted  to 
refresh  his  memory  by  extracts  made  from  other  writings.^  (3.) 
Where  the  writing  in  question  neither  is  recognized  by  the  wit- 
ness as  one  which  he  remembers  to  have  before  seen,  nor  awakens 
his  memory  to  the  recollection  of  any  thing  contained  in  it ;  but, 
nevertheless,  knowing  the  writing  to  be  genuine,  his  mind  is  so 
convinced,  that  he  is  on  that  ground  enabled  to  swear  positively 
as  to  the  fact.  An  example  of  this  kind  is,  where  a  banker's 
clerk  is  sho'wn  a  bill  of  exchange,  which  has  his  own  writing 
upon  it,  from  which  he  knows  and  is  able  to  state  positively  that 
it  passed  through  his  hands.  So,  where  an  agent  made  a  parol 
lease,  and  entered  a  memorandum  of  the  terms  in  a  book  which 
was  produced,  but  the  agent  stated  that  he  had  no  memory  of 
the  transaction  but  from  the  book,  without  which  he  should  not, 
of  his  own  knowledge,  be  able  to  speak  to  the  fact,  but  on  read- 
ing the  entry  he  had  no  doubt  that  the  fact  really  happened  ;  it 
was  held  sufficient.^  So,  where  a  witness,  called  to  prove  the 
execution  of  a  deed,  sees  his  own  signature  to  the  attestation, 
and  says,  that  he  is  therefore  sure  that  he  saw  the  party  execute 
the  deed ;  that  is  sufficient  proof  of  the  execution  of  a  deed, 


1  Supra,  §§  115,  436  ;  Rex  v.  St.  Mar- 
tin's, Leicester,  2  Ad.  &  El.  215,  per  Pat- 
teson,  J. ;  Sinclair  v.  Stevenson,  1  C.  &P. 
582;  8.  c.  2  Bing.  516;  s.  c.  10  Moore, 
46 ;  Loyd  v.  Freslifield,  2  C.  &  P.  325 ; 
8.  c.  8  D.  &  R.  19.  If  the  paper  is  shown 
to  the  witness,  directly  to  prove  the 
handwriting,  it  has  been  ruled  that  the 
other  party  has  not  therefore  a  right  to 
use  it.  Sinclair  v.  Stevenson,  supra.  But 
the  contrary  has  since  been  held,  by 
Bosanquet,  J.,  in  Russell  v.  Ryder,  6  C. 
&  P.  416,  and  with  good  reason ;  for  the 
adverse  party  has  a  right  to  cross-e.xam- 
ine  the  witness  as  to  the  handwriting. 
2  Phil.  Evid.  400.  But  if  the  counsel,  in 
cross-examination,  puts  a  paper  into  a 
witness's  hand,  in  order  to  refresh  his 
memory,  the  opposite  counsel  has  a  right 
to  look  at  it  without  being  bound  to  read 
it  in  evidence ;  and  may  also  ask  the 
witness  when  it  was  written,  without 
being  bound  to  put  it  into  the  case.  Rex 
V.  Ramsden,  2  C.  &  P.  603  [Payne  v. 
Ibbotson.  27  L.  J.  Ex.  341.  But  see 
Lord  V.  Colvin,  2  Drew.  205 ;  Palmer  i\ 
Maclear,  2  Sw.  &  Tr.  149.  If  he  asks 
questions  as  to  other  parts  of  the  memo- 
randum, he  makes  it  his  own  evidence. 
Gregory  v.  Tavernor,  6   C.  &  P.  281]. 


The  American  courts  have  sometimes 
carried  the  rule  farther  than  it  has  been 
carried  in  England,  by  admitting  the 
writing  itself  to  go  in  evidence  to  the 
jury,  in  all  cases  where  it  was  made  by 
the  witness  at  the  time  of  the  fact,  for  the 
purpose  of  preserving  the  memory  of  it, 
if  at  the  time  of  testifying  he  can  recol- 
lect nothing  further  than  that  he  had  ac- 
curately reduced  the  whole  transaction  to 
writing.  Farmers'  and  Mechanics'  Bank 
V.  Boraef,  1  Rawle,  152 ;  Smith  v.  Lane, 
12  S.  &  R.  84,  per  Gibson,  J. ;  The  State 
V.  Rawls,  2  Nott  &  McCord,  831;  Clark  u. 
Vorce,  15  Wend.  193  ;  Merrill  v.  Ithaca 
&  Oswego  Railroad  Co.,  16  Wend.  586, 
596-598;  Haven  v.  Wendell,  11  N.  H. 
112.  But  see  Lightner  v.  Wike,  4  S.  & 
R.  203  [infra,  §  466]. 

2  Doe"y.  Perkins,  3  T.  R.  749;  2  Ad. 
&  El.  215. 

8  1  Stark.  Evid.  154,  155;  Alison's 
Practice,  pp.  540,  541 ;  Tait  on  Evid.  432. 
[In  Reg.  V.  Guinea  (Ir.  Cir.  Reps.  167),  a 
barrister  was  allowed  to  prove,  by  refer- 
ence to  his  notes  taken  at  a  former  trial, 
that  a  witness  had  materially  varied  his 
statements,  though  he  had  no  indepen- 
dent recollection  of  the  matter.] 


488 


LAW   OF  EVIDENCE. 


[part  in. 


though  he  adds  that  he  has  no  recollection  of  the  fact.^  In  these 
and  the  like  cases,  for  the  reason  before  given,  the  writing  itself 
must  be  produced.^ 

§  438.  Date  of  writing  so  used.  As  to  the  time  when  the  writing^ 
thus  used  to  restore  the  recollection  of  facts,  should  have  been 
made,  no  precise  rule  seems  to  have  been  established.  It  is  most 
frequently  said,  that  the  writing  must  have  been  made  at  the 
time  of  the  fact  in  question,  or  recently  afterwards.^  At  the 
farthest,  it  ought  to  have  been  made  before  such  a  period  of 
time  has  elapsed,  as  to  render  it  probable  that  the  memory  of  the 
witness  might  have  become  deficient.'*  But  the  practice,  in  this 
respect,  is  governed  very  much  by  the  circumstances  of  the  par- 
ticular case.  In  one  case,  to  prove  the  date  of  an  act  of  bank- 
ruptcy committed  many  years  before,  a  witness  was  permitted  to 
recur  to  his  own  deposition,  made  some  time  during  the  year  in 
which  the  fact  happened.^  In  another  case,  the  witness  was  not 
permitted  to  refresh  his  memory  with  a  copy  of  a  paper,  made  by 
himself  six  months  after  he  made  the  original,  though  the  origi- 
nal was  proved  to  have  been  so  written  over  with  figures  as  to 
have  become  unintelligible  ;  the  learned  judge  saying,  that  he 
could  only  look  at  the  original  memorandum,  made  near  the 
time.^     And  in  a  still  later  case,  where  it  was  proposed  to  refer 


1  Rex  V.  St.  Martin's,  Leicester,  2  Ad. 
&  El.  210.  See  also  Haig  v.  Newton,  1 
Const.  423;  Sharpe  v.  Bingley,  Id.  373 
[Martin  v.  Good,  14  Md.  3'J8 ;  Cole  v.  Jes- 
8up,  6  Selden  (N.  Y.),  90]. 

2  Maugham  v.  Hubbard,  8  B.  &  C.  16, 
per  Bailees  J. ;  Russell  v.  Coffin,  8  Pick. 
143,  150  ;  Den  v.  Downam,  1  Green, 
135,  142;  Jackson  v.  Ciiristnian,  4  Wend. 
277,  2b2 ;  Merrill  v.  Itiiaca,  &c.  Railroad 
Co.,  IG  Wend.  598;  Patterson  v.  Tucker, 
4  Halst.  322,332,  333;  Wheeler  v.  Hatch, 
3  Fairf.  389;  Pigott  v.  HoUoway,  1  Binn. 
430  ;  Collins  i;.  Lemasters,  2  Bail.  141. 

s  Tanner  v.  Taylor,  cited  by  Buller,  J., 
in  Doe  r.  Perkins,  3  T.  R.  754 ;  Howard 
V.  Canfield,  5  Dowl.  P.  C.  417;  Dupuy  v. 
Truman,  2  Y.  &  Col.  341.  Where  A  was 
proved  to  have  written  a  certain  article 
in  a  newspaper,  but  the  manuscript  was 
lost,  and  A  had  no  recollection  of  the 
fact  of  writing  it,  it  was  held  that  the 
nc  wspai)er  might  be  used  to  refresh  his 
memory,  and  that  he  might  then  be 
asktjd  whether  he  had  any  doubt  that  the 
fact  was  as  therein  stated.  Topham  v. 
McGregor,  1  Car.  &  Kir.  .320..  So,  where 
the  transaction  had  faded  from  the  mem- 


ory of  the  witness,  but  he  recollected, 
that  while  it  was  recent  and  fresh  in  his 
memory,  he  had  stated  the  circumstances 
in  his  examination  before  commissioners 
of  bankruptcy,  wliich  they  had  reduced 
to  writing,  and  he  had  signed ;  he  was 
allowed  to  look  at  his  examination  to 
refresh  liis  memory.  Wood  v.  Cooper, 
Id.  645. 

*  Jones  V.  Stroud,  2  C.  &  P.  196. 

*  Vaughan  v.  Martin,  1  Esp.  440. 

e  Jones  v.  Stroud,  2  C.  &  P.  196,  per 
Best,  C.  J.  In  this  case,  the  words  in  the 
copy  and  as  sworn  to  by  tlie  witness  were 
spoken  to  the  plaintiff;  but  on  producing 
the  original,  which,  on  further  reflection, 
was  confirmed  by  tiie  witness,  it  appeared 
that  they  were  spoken  of  him.  The  ac- 
tion was  slander ;  and  tiie  words  being 
laid  according  to  the  copy,  for  this  vari- 
ance the  plaintiff  was  nonsuited.  [Copies 
made  under  such  circumstances  that  the 
witness  can  swear  to  the  accuracy  of 
their  statements  from  recollection,  have 
been  frequently  admitted.  Lord  Talbot 
f.  Cusack,  17  Ir.  L.  n.  s.  213.  See  also 
Home  V.  .McKenzie,  6  C.  &  F.  628 ;  Topham 
v.  McGregor,  where  the  author  of  an  arti- 


CHAP,  in.] 


•RXATVUNATION  OF   WITNESSES. 


489 


to  a  paper,  which  the  witness  had  drawn  up  for  the  party  who 
called  him,  after  the  cause  was  set  down  for  trial,  the  learned 
judge  refused  it ;  observing  that  the  rule  must  be  confined  to 
papers  written  contemporaneously  with  the  transaction.^  But 
where  the  witness  had  herself  noted  down  the  transactions  from 
time  to  time  as  they  occurred,  but  had  requested  the  plaintiffs 
solicitor  to  digest  her  notes  into  the  form  of  a  deposition,  wliich 
she  afterwards  had  revised,  corrected,  and  transcribed,  the  Lord 
Chancellor  indignantly  suppressed  the  deposition.^ 

§  439.  'When  witness  is  blind.  If  a  witness  has  become  hlinJ, 
a  contemporaneous  writing  made  by  himself,  though  otherwise 
inadmissible,  may  yet  be  read  over  to  him  in  order  to  excite  his 
recollection.^  So,  where  a  receipt  for  goods  was  inadmissible  for 
want  of  a  stamp,  it  was  permitted  to  be  used  to  refresh  the  mem- 
ory of  a  witness  who  heard  it  read  over  to  the  defendant,  the 
latter  at  the  same  time  admitting  the  receipt  of  the  goods.* 


cle  in  a  newspaper,  the  MS.  being  lost, 
was  allowed  to  refresh  his  memory  from 
the  printed  article.     1  C.  &  K.  320.1 

1  Steinkeller  v.  Newton,  9  C.  &  P.  313. 
[So  where  a  witness,  five  months  after  the 
occurrence  of  certain  events,  had,  at  the 
request  of  a  party  interested,  made  a 
statement  in  writing,  and  swore  to  it,  he 
was  not  allowed  to  testify  to  his  belief  in 
its  correctness.  Spring  Garden  Lis.  Co. 
V.  Riley,  15  Md.  54.] 

2  Anon.,  cited  by  Lord  Kenyon,  in  Doe 
V.  Perkins,  3  T.  R.  752.  See  also  Sayer 
V.  Wagstaff,  5  Bear.  462. 

3  Catt  V.  Howard,  3  Stark.  3. 

*  Jacob  V.  Lindsay,  1  East,  460.  In 
Scotland,  the  subject  of  the  use  and 
proper  oflSce  of  writings,  in  restoring  the 
recollection  of  witnesses,  has  been  well 
considered  and  settled ;  and  the  law,  as 
practised  in  the  courts  of  that  country, 
is  stated  with  precision  by  Mr.  Alison,  in 
his  elfegant  and  philosophical  Treatise  on 
the  Practice  of  the  Criminal  Law.  "  It 
is  frequently  made  a  question,"  he  ob- 
serves, "  whether  a  witness  may  refer  to 
notes  or  memorandums  made  to  assist 
his  memory.  On  this  subject,  the  rule 
is,  that  notes  or  memoranda  made  up  by 
the  witness  at  the  moment,  or  recently 
after  the  fact,  may  be  looked  to  in  order 
to  refresh  his  memory ;  but  if  they  were 
made  up  at  the  distance  of  weeks  or 
months  thereafter,  and  still  more,  if  done 
at  the  recommendation  of  one  of  the  par- 
ties, they  are  not  admissible.  It  is  ac- 
cordingly usual  to  allow  witnesses  to 
look  to  memorandums  made  at  the  time, 


of  dates,  distances,  appearances  on  dead 
bodies,  lists  of  stolen  goods,  or  the  like, 
before  emitting  his  testimony,  or  even 
to  read  such  notes  to  the  jury,  as  his 
evidence,  he  having  first  sworn  that  they 
were  made  at  the  time,  and  faithfully 
done.  In  regard  to  lists  of  stolen  goods, 
in  particular,  it  is  now  the  usual  practice 
to  have  inventories  of  them  made  up  at 
the  time  from  the  information  of  the  wit- 
ness in  precognition,  signed  by  him,  and 
libelled  on  as  a  production  at  the  trial, 
and  he  is  then  desired  to  read  them,  or 
they  are  read  to  him,  and  he  swears  that 
they  contain  a  correct  list  of  tlie  stolen 
articles.  In  this  way  much  time  is  saved 
at  the  trial,  and  much  more  correctness 
and  accuracy  is  obtained,  than  could 
possibly  have  been  e.xpected,  if  the  wit- 
ness were  required  to  state  from  memory 
all  the  particulars  of  the  stolen  articles, 
at  the  distance  perhaps  of  months  from 
the  time  when  they  were  lost.  With  the 
exception,  however,  of  such  memoran- 
dums, notes,  or  inventories  made  up  at 
the  time,  or  shortly  after  the  occasion 
libelled,  a  witness  is  not  permitted  to 
refer  to  a  written  paper  as  containing  his 
deposition;  for  that  would  annihilate  the 
whole  advantages  of  parol  evidence,  and 
viva  vore  examination,  and  convert  a  jury 
trial  into  a  mere  consideration  of  written 
instruments.  There  is  one  exception, 
however,  properly  introduced  into  this 
rule;  in  the  case  of  medical  or  other 
scientific  reports  or  certificates,  which 
are  lodged  in  process  before  the  trial, 
and  libelled  on  as  productions  in   the 


490  LAW   OF  EVIDENCE.  [PART  HI. 

§  140.  Degree  of  certainty.  Opinions.  Ill  general,  tllOUgh  a  wit- 
ness must  depose  to  such  facts  only  as  are  within  his  own  knowl- 
edge^ yet  there  is  no  rule  that  requires  him  to  speak  with  such 
expression  of  certainty  as  to  exclude  all  doubt  in  his  mind.  If 
the  fact  is  impressed  on  his  memory,  but  his  recollection  does  not 
rise  to  positive  assurance,  it  is  still  admissible,  to  be  weighed  by 
the  jury  ;  but  if  the  impression  is  not  derived  from  recollection 
of  the  fact,  and  is  so  slight  as  to  render  it  probable  that  it  may 
have  been  derived  from  others,  or  may  have  been  some  unwar- 
rantable deduction  of  the  witness's  own  mind,  it  will  be  rejected.^ 
And  though  the  opinions  of  witnesses  are  in  general  not  evidence, 
yet  on  certain  subjects  some  classes  of  witnesses  may  deliver  their 
own  opinions,  and  on  certain  other  subjects  any  competent  wit- 
ness may  express  his  opinion  or  belief ;  and  on  any  subject  to 
which  a  witness  may  testify,  if  he  has  any  recollection  at  all  of 
the  fact,  he  may  express  it  as  it  lies  in  his  memory,  of  which  the 
jury  will  judge.'^  Thus  it  is  the  constant  practice  to  receive  in 
evidence  any  witness's  belief  of  the  identity  of  a  person,  or  that 
the  handwriting  in  question  is  or  is  not  the  handwriting  of  a  par- 
ticular individual,  provided  he  has  any  knowledge  of  the  person 
or  handwriting  j  and  if  he  testifies  falsely  as  to  his  belief,  he  may 
be  convicted  of  perjury.^  On  questions  of  science,  skill,  or  trade, 
or  others  of  the  like  kind,  persons  of  skill,  sometimes  called  ex~ 
jperts,'^  may  not  only  testify  to  facts,  but  are  permitted  to  give 

indictment,   and   wliich    the   witness    is  to  a  furtlier  examination  by  the  prosecu- 

allowed  to  read  as  liis  deposition  to  the  tor,  or  a  cross-examination  on  the  pris- 

jury,  confirming  it  at  its  close  by  a  dec-  oner's  part;   and   if  he  is  called  on   to 

laration  on  his  oath,  that  it  is  a  true  re-  state  any  facts  in  the  case,  unconnected 

port.      The  reason  of  this  exception  is  with  his  scientific  report,  as  conversations 

founded   in   the  consideration,  that  the  with  the  deceased,  confessions  heard  by 

medical  or  other  scientific  facts  or  ap-  him  from   the  panel,  or  the  like,  utilur 

pearances,  which  are  the  subject  of  such  jure  commune,  he  stands  in  the  situation 

a  report,  are  generally  so  minute   and  of  an  ordinary  witness,  and  must  give 

detailed,  tliat  they  cannot  with  safety  be  his  evidence  verbally  in  answer  to  the 

intrusted  to  the  memory  of  the  witness,  questions  put  to  him,  and  can  only  refer 

but  much  more  reliance  may  be  placed  to  jottings  or  memorandums  of   dates, 

on  a  report  made  out  by  him  at  the  time,  &c.,  made  up  at  the  time,  to  refresh  his 

when  the  facts  or  appearances  are  fresh  memory,  like  any  other  person  put  into 

in  his  recollection ;   while,  on  the  other  the  box."     See  Alison's  Practice,  640- 

hand,  such  witnesses  have  generally  no  542. 

personal  interest  in  the  matter,  and,  from  '  Clark  v.  Bigelow,  4  Shepl.  24G  [Nute 

their  situation  and  rank  in  life,  are  much  i;.  Nute,  41  N.  II.  GO], 
less  liable  to  suspicion  than  those  of  an  ^  Miller's   case,  S  Wils.  427,  per  Ld. 

inferior  class,  or  more   intimately  con-  Ch.  Just.  DeGrey ;  McNally's  Evid.  '202, 

nected  with  the  transaction  in  question.  2<>:].     And  see  Carmalt  y.  Post,  8  Watts, 

Although,  therefore,  the  scientific  witness  411,  per  Gibson,  C.  J. 
is  always  called  on  to  read  his  report,  as  *  Rex  v.  Pedley,  Leach,  Cr.  Cas.  365, 

affording  the  best  evidence  of  the  appear-  case  152. 

ances  he  was  called  on  to  examine,  yet  *  Experts,  in  the   strict  sense  of  the 

he  may  be,  and  generally  is,  subjected  word,  are  "  persons  instructed  by  expe- 


CHAP,  in.] 


EXAMINATION   OF   WITNESSES. 


491 


their  opinions  in  evidence.  Thus,  the  opinions  of  medical  men 
are  constantly  admitted  as  to  the  cause  of  disease,  or  of  death, 
or  the  consequences  of  wounds,  and  as  to  the  sane  or  insane  state 
of  a  person's  mind,  as  collected  from  a  number  of  circumstances, 
and  as  to  other  subjects  of  professional  skill. ^  And  such  opinions 
are  admissible  in  evidence,  though  the  witness  founds  them,  not 
on  his  own  personal  observation,  but  on  the  case  itself,  as  proved 
by  other  witnesses  on  the  trial.^     But  where  scientific  men  are 


rience."  1  Bouvier's  Law  Diet,  in  verb. 
But  more  generally' speaking,  the  term 
includes  all  "  men  of  science,"  as  it  was 
used  by  Ld.  Mansfield  in  Folkes  v.  Cliadd, 
3  Doug.  157  ;  or,  "  persons  professionally 
acquainted  with  the  science  or  practice  " 
in  question  ;  Strickland  on  Evid.  p.  408 ; 
or  "  conversant  with, the  subject-matter, 
on  questions  of  science,  skill,  trade,  and 
others  of  the  like  kind."  Best's  Princi- 
ples of  Evidence,  §  346.  The  rule  on  this 
subject  is  stated  by  Mr.  Smith  in  his  note 
to  Carter  v.  Boehm,  1  Smith's  Lead.  Cas. 
280.  "  On  the  one  hand,"  he  observes, 
"  it  appears  to  be  admitted  tliat  the  opin- 
ion of  witnesses  possessing  peculiar  skill 
is  admissible,  whenever  tiie  subject-mat- 
ter of  inquiry  is  such,  that  inexperienced 
persons  are  unlikely  to  prove  capable  of 
forming  a  correct  judgment  upon  it  with- 
out such  assistance  ;  in  other  words,  when 
it  so  far  partakes  of  the  nature  of  a  sci- 
ence, as  to  require  a  course  of  previous 
habit,  or  study,  in  order  to  the  attain- 
ment of  a  knowledge  of  it ;  see  Folkes  ''. 
Chadd,  3  Doug.  157 ;  R.  v.  Searle,  2  M. 
&  M.  75;  Thornton  v.  R.  E.  Assur.  Co., 
Peake,  25;  Chaurand  v.  Angerstein, 
Peake,  44 ;  while,  on  the  other  hand,  it 
does  not  seem  to  be  contended  that  the 
opinions  of  witnesses  can  be  received, 
when  the  inquiry  is  into  a  subject-matter, 
the  nature  of  which  is  not  such  as  to  re- 
quire any  peculiar  habits  or  study,  in 
order  to  qualify  a  man  to  understand  it." 
It  has  been  held  unnecessary  tliat  the 
witness  should  be  engaged  in  the  practice 
of  his  profession  or  science  ;  it  being  suffi- 
cient that  he  has  studied  it.  Thus,  the 
fact  that  the  witness,  thougli  he  had 
studied  medicine,  was  not  then  a  prac- 
tising physician,  was  held  to  go  merely  to 
his  credit.  Tullis  v.  Kidd,  12  Ala.  648. 
[When  the  subject  so  fiir  partakes  of  the 
nature  of  a  science  or  trade  as  to  require 
a  previous  course  of  study  or  habit  in 
order  to  the  attainment  of  a  knowledge 
of  it,  opinions  of  experts  are  admissible. 
On  the  other  hand,  if  the  relation  of 
facts  and  their  probable  results  can  be 
determined    without    special    study    or 


skill,  the  facts  themselves  must  be  given, 
and  the  opinions  of  experts  are  inad- 
missible. Brakemen,  baggage-masters, 
and  conductors  are  not  experts  as  to  the 
coupling  of  cars  and  its  dangers.  Mul- 
downey  v.  III.  Cen.  R.  R.,  36  Iowa,  462; 
Hamilton  v.  Desmoines  R.  R.,  Id.  31.  See 
also  Page  v.  Parker,  40  N.  H.  47 ;  Pela- 
mourges  v.  Clark,  9  Iowa,  1.  An  expert 
may  state  facts  which  are  the  result  of 
scientific  knowledge  or  professional  skill, 
Emerson  v.  Low.  Gas  Light  Co.,  6  Allen 
(Mass.),  148  ;  but  they  cannot  give  opin- 
ions upon  matters  of  connnon  knowledge. 
White  V.  Ballon,  8  Allen  (Mass.),  408; 
N.  E.  Glass  Co.  v.  Lovell,  7  Cush.  (Mass.) 
321.  That  the  testimony  of  experts,  in 
many  if  not  in  most  cases,  is  of  little 
value,  is  universally  agreed.  Tracy  Peer- 
age Case,  10  C.  &  F.  191 ;  Best,  Ev.  §  514 
(6th  ed.);  Com.  v.  Andrews,  Pamphlet, 
Sup.  Ct.  Mass.  1868;  Winans  v.  N.  Y.  &  E. 
R.  R.,  21  How.  (U.  S),  101  ;  Taylor,  Er. 
§  50 ;  Dickenson  v.  Fitchburg,  13  Gray 
(Mass.),  555.  Mr.  Taylor,  «/;/ s»;j?y<,  has 
also  offered  some  suggestions  as  to  the 
value  of  the  evidence  of  foreigners,  fe- 
males, children,  and  policemen,  to  their 
disparagement ;  but,  with  the  possible 
exception  of  the  last,  not  well  founded, 
as  we  believe,  in  general  experience. 
On  the  contrary,  females,  children,  and 
foreigners,  as  a  rule,  are  the  best  of  wit- 
nesses. See  further,  as  to  the  value  of 
expert  testimony,  an  interesting  paper 
by  Prof.  Washburn  of  Harvard  Law 
School,  in  Am.  L.  Rev.  vol.  i.  p.  45] 

1  Stark.  Evid.  154;  Phil.  &  Am.  on 
Evid.  8U9;  Tait  on  Evid.  433;  Hathorn 
V.  King,  8  Mass.  371 ;  Hoge  v.  Fisher,  1 
Pet.  C.  C.  163;  Folkes  v.  Chadd,  3  Doug. 
157,  per  Ld.  Mansfield;  McNally's  Evid. 
329-335,  c.  30. 

2  Rex  V.  Wright,  Russ.  &  Ry.  156 ; 
Rex  V.  Searle,  1  M.  &  Rob.  75  ;  McNaugh- 
ten's  case,  10  CI.  &  Fin.  200,  212;  Paige 
V.  Hazard,  5  Hill,  603.  [But  an  expert 
cannot  be  allowed  to  give  his  opinion 
upon  a  case  based  upon  statements  made 
to  him  by  parties  out  of  court  and  not  un- 
der oath.    Heald  v.  Thing,  45  Maine,  392.] 


492 


LAW   OF   EVIDENCE. 


[part  m. 


called  as  witnesses,  they  cannot  give  their  opinions  as  to  the  gen- 
eral merits  of  the  cause,  but  only  their  opinions  upon  the  facts 
proved.!  And  if  the  facts  are  doubtful,  and  remain  to  be  found 
by  the  jury,  it  has  been  held  improper  to  ask  an  expert  who  has 
heard  the  evidence,  what  is  his  opinion  upon  the  case  on  trial, 
though  he  may  be  asked  his  opinion  upon  a  similar  case,  hypo- 
tlietically  stated.^  Nor  is  the  opinion  of  a  medical  man  admissi- 
ble, that  a  particular  act,  for  which  a  prisoner  is  tried,  was  an  act 
of  insanity .3  So,  the  subscribing  witnesses  to  a  will  may  testify 
their  opinions,  in  respect  to  the  sanity  of  the  testator  at  the  time 
of  executing  the  will,  though  other  witnesses  can  speak  only  as 
to  facts  ;  for  the  law  has  placed  the  subscribing  witnesses  about 
the  testator,  to  ascertain  and  judge  of  his  capacity.*  Seal  en- 
gravers may  be  called  to  give  their  opinion  upon  an  impression 
whether  it  was  made  from  an  original  seal  or  from  an  impression.^ 
So,  th^  opinion  of  an  artist  in  painting  is  evidence  of  the  genuine- 
ness of  a  picture.^  And  it  seems  that  the  genuineness  of  a  post- 
mark may  be  proved  by  the  opinion  of  one  who  has  been  in  the 


1  Jameson  v.  Drinkald,  12  Moore,  148. 
But  professional  books,  or  books  of  sci- 
ence (e.g.,  medical  books),  are  not  admis- 
sible in  evidence ;  though  professional 
witnesses  may  be  asked  the  grounds  of 
tlieir  judgment  and  opinion,  which  might 
in  some  degree  be  founded  on  these  books 
as  a  part  of  their  general  knowledge. 
Collier  i;.  Simpson,  5  C.  &  P.  73  [Com- 
monwealth V.  Wilson,  1  Gray,  338].  By 
statute  in  Iowa.  Broadhead  v.  VVilter,  35 
Iowa,  429  ;  Bowman  y. Woods,  1  Iowa,  441. 
[See  also  }>ost,  §  4y7,  n.  Matters  of  gen- 
eral history  may  be  assumed  as  within  the 
knowledge  of  court  and  jury,  but  particu- 
lar facts  relevant  to  the  cause  cannot  be 
proved  by  reading  from  a  published  book, 
nor  can  medical  books  or  those  upon 
farming  be  cited  by  counsel ;  but  medical 
witnesses  may  be  asked  or  cross-exam- 
ined whether  they  have  road  a  particular 
book  ;  and  books  of  standard  authority 
in  literature  may  be  referred  to  by  coun- 
sel, in  order  to  show  tlie  general  course 
of  construction,  and  explain  the  sense  in 
which  wonls  are  used.  Darby  v.  Ousley, 
1  H.  &  N.  1.] 

■^  Sills  V.  Brown,  9  C.  &  P.  601. 

3  Hex  V.  Wright,  Russ.  &  R.  466. 

♦  Chase  r.  Lincoln,  3  Mass.  237  ;  Poole 
V.  Richardson,  Id.  330 ;  Rambler  v.  Tryon, 
7  S.  &  R.  90,  1)2;  Buckminster  v.  Perry, 
4  Mass.  603  ;  Grant  v.  Thompson,  4  Conn. 
203.  And  see  Sheafe  v.  Rowe,  2  Lee, 
415;  Kinleside  v.  Harrison,  2  Phil.  623; 
Wogan  i;.  Small,  11  S.  &  R.  141.    But 


where  the  witness  has  had  opportunities 
for  knowing  and  observing  the  conversa- 
tion, conduct,  and  manners  of  the  person 
whose  sanity  is  in  question,  it  has  been 
held,  upon  grave  consideration,  that  the 
witness  may  depose,  not  only  to  particu- 
lar facts,  but  to  his  opinion  or  belief  as 
to  tlie  sanitj'  of  the  party,  formed  from 
such  actual  observation.  Clary  v.  Clary, 
2  Ired.  78.  Such  evidence  is  also  ad- 
mitted in  the  ecclesiastical  courts.  See 
Wheeler  v.  Alderson,  3  Hagg.  Eccl.  574, 
604,  605.  [A  non-professional  witness 
may  give  his  opinion  upon  the  sanity  of 
a  party,  as  the  result  of  his  own  observa- 
tions, accompanied  with  a  statement  of 
the  facts,  which  he  has  observed,  but  he 
cannot  give  an  opinion  upon  the  facts 
stated  by  other  witnesses.  Dunham's 
Appeal,  27  Conn.  193.  And  this  view, 
which  seems  now  the  better  o])inion,  is 
maintained  with  great  ability,  and  abun- 
dant authority,  in  a  dissenting  oj)inion 
in  State  «;.  Pike,  40  N.  H.  308,  where  the 
point  is  considered  exhaustively,  and  the 
authorities  to  the  contrary  critically  ex- 
amined, by  Doe,  J.  State  v.  Pike  was 
afterwards  overruled,  and  the  doctrine 
contended  for  b}'  Doe,  J.,  accej)ted,  in  a 
learned  opinion,  well  worthy  of  jjerusal, 
by  Mt.  Ch.  J.  Foster,  in  Hardy  v.  Merrill, 
60  N.  H.  227.  See  further,  as  to  insanity, 
vol.  ii.  §  360.] 

*  Per  Ld.  Mansfield,  in  Folkes  v. 
Chadd,  3  Doug.  167. 

6  Ibid. 


CHAP,  ni.]  EXAMINATION  OF   WITNESSES.  493 

habit  of  receiving  letters  with  that  mark.^  In  an  action  for 
breach  of  a  promise  to  marry,  a  person  accustomed  to  observe  the 
mutual  deportment  of  the  parties  may  give  in  evidence  liis  opin- 
ion upon  the  question,  whether  they  were  attached  to  each  other.^ 
A  ship-builder  may  give  his  opinion  as  to  the  seaworthiness  of  a 
ship,  even  on  facts  stated  by  others.^  A  nautical  person  may  tes- 
tify his  opinion  whether,  upon  the  facts  proved  by  the  plaintiff, 
the  collision  of  two  ships  could  have  been  avoided  by  proper  care 
on  the  part  of  the  defendant's  servants.^  Where  the  question 
was,  whether  a  bank,  which  had  been  erected  to  prevent  the 
overflowing  of  the  sea,  had  caused  the  choking  up  of  a  harbor, 
the  opinions  of  scientific  engineers,  as  to  the  effect  of  such  an 
embankment  upon  the  harbor,  were  held  admissible  in  evidence.^ 
A  secretary  of  a  fire  insurance  company,  accustomed  to  examine 
buildings  with  reference  to  the  insurance  of  them,  and  who,  as 
a  county  commissioner,  had  frequently  estimated  damages,  occa- 
sioned by  the  laying  out  of  railroads  and  highways,  has  been  held 
competent  to  testify  his  opinion,  as  to  the  effect  of  laying  a  rail- 
road within  a  certain  distance  of  a  building,  upon  the  value  of 
the  rent,  and  the  increase  of  the  rate  of  insurance  against  fire.^ 
Persons  accustomed  to  observe  the  habits  of  certain  fish  have 
been  permitted  to  give  in  evidence  their  opinions  as  to  the  abil- 
ity of  the  fish  to  overcome  certain  obstructions  in  the  rivers  which 
they  were  accustomed  to  ascendJ  A  person  acquainted  for  many 
years  with  a  certain  stream,  its  rapidity  of  rise  in  times  of  freshet, 
and  the  volume  and  force  of  its  waters  in  a  certain  place,  may 
give  his  opinion  as  to  the  sufficiency  of  a  dam  erected  in  that 
place  to  resist  the  force  of  the  flood.^     A  practical  surveyor  may 

1  Abbey  v.  Lill,  5  Bing.  299,  per  Gase-  the  jury  are  to  determine  upon  the  facts 
lee,  J.  [The  testimony  of  experts  is  re-  proved.  Whitmarsh  v.  Angle,  3  Am. 
ceivable,  in  corroboration  of  positive  evi-     Law  Journ.  n.  s.  274. 

dence,  to  prove  that,  in  their  opinion,  the  *  Fenwick  v.  Bell,  1  Car.  &  Kir.  312. 

whole  of  an  instrument  was  written  by  5  Folkes  v.  Chadd,  3  Doug.  157. 

the  same  hand,  with  the  same  pen  and  ^  Webber  v.  Eastern  Railroad  Co  ,  2 

ink,   and   at  the  same  time.     Fulton  v.  Met.  147.     Where  a  point  involving  ques- 

Hood,  84  Penn.  365.]  tions  of  practical  science  is  in  dispute  in 

2  McKee  v.  Nelson,  4  Cowen,  355.  chancery,  the  court  will  advise  a  reference 
8  Thornton  v.  The  Royal  Exch.  Assur.  of  it  to  an  expert  in  that  science,  for  hia 

Co.,  1  Peake,  25 ;    Chauraud   v.  Anger-  opinion  upon  the  facts ;    which  will  be 

stein.  Id.  43;  Beckwith  v.  Sidebotham,  1  adopted  by  the  court  as  the  ground  of  its 

Campb.  117.     So  of  nautical  men,  as  to  order.      Webb   v.  Manchester  &  Leeds 

navigating  a  ship.     Malton  y.  Nesbit,  1  Railw.  Co.,  4  My.  &  C.  116, 120;  1  Railw. 

C.  &  P.  70.     Upon  the  question,  whether  Cas.  576. 

certain  implements  were  part  of  the  nee-  "^  Cottrill  v.  Myrick,  3  Fairf.  222. 

essary  tools  of  a  person's  trade,  the  ophi-  *  Porter  v.  Poquonnoc  Man.   Co.,  17 

tons  of  witnesses  are  not  admissible  ;  but  Conn.  249. 


494 


LAW   OF  EVIDENCE. 


[part  in. 


express  liis  opinion,  whether  the  marks  on  trees,  piles  of  stone, 
&c.,  were  intended  as  monuments  of  boundaries ;  ^  but  he  cannot 
be  asked  whether,  in  his  opinion,  from  the  objects  and  appear- 
ances which  he  saw  on  the  ground,  the  tract  he  surveyed  was 
identical  with  the  tract  marked  on  a  certain  diagram.'-^ 


1  Davis  V.  Mason,  4  Pick.  156. 

2  Farar  v.  Warfield,  8  Mart.  n.  s.  695, 
696.  So,  the  opinion  of  an  experienced 
seaman  has  been  received,  as  to  the  proper 
stowage  of  a  cargo.  Price  v.  Powell,  3 
Const.  322 ;  and  of  a  mason,  as  to  the 
time  requisite  for  the  walls  of  a  house  to 
become  so  dry  as  to  be  safe  for  human 
habitation,  Smith   v.    Gugerty,  4   Barb. 

5  C  614  ;  and  of  a  master,  engineer,  and 
builder  of  steamboats,  as  to  the  manner  of 
a  collision,  in  view  of  the  facts  proved, 
The  Clipper  v.  Logan,  18  Ohio,  375.  [A 
witness,  even  if  an  expert  as  to  hand- 
writing, cannot  give  his  opinion  as  to  the 
indorsement  on  a  note  having  been  made 
as  long  previous  as  six  years.  Sackett  v. 
Spencer,  29  Barb.  180.]  But  mere  opin- 
ions as  to  the  amount  of  damages  are  not 
ordinarily  to  be  received.  Harger  v. 
Edmonds,  4  Barb.  S.  C.  256;  Giles  v. 
O'Toole,  Id.  261.  See  also  Walker  v.  Pro- 
tection Ins.  Co.,  16  Shepl.  317.  Nor  are 
mere  opinions  admissible  respecting  the 
value  of  property  in  common  use,  such  as 
horses  and  wagons,  or  lands,  concerning 
which  no  particular  study  is  required,  or 
skill  possessed.  Robertson  v.  Stark,  15 
N.  H.  109;  Rochester  v.  Chester,  3  N. 
H.  349 ;  Peterborough  v.  JafErey,  6 
N.  H.  462.  And  see  Whipple  v.  Wal- 
pole,  10  N.  H.  130,  where  tiiis  rule  is 
expounded.  [But  see  Vandine  i-.  Burpee, 
13  Met.  288;  Shaw  v.  Charlestown,  2 
Gray,  107.  The  value  of  the  reversion 
of  land  over  which  a  railroad  is  located  is 
not  properly  provable  by  experts.  Boston 

6  Worcester  R.  Co.  v.  Old  Colony  R.  Co., 
8  Allen,  142 ;  Mish  v.  Wood,  34  Penn. 
451.  Some  nice,  and  often  difficult, 
questions  will  arise,  in  regard  to  the 
particular  matters  and  points  with  refer- 
ence to  which  witnesses  msiy  be  allowed 
to  give  testimony  by  way  of  opinion. 
For  some  excellent  illustrations,  see  Red- 
field's  Railways,  133,  134,  and  notes; 
Wills,  part  1,  §§  37-39.  But  it  is  not 
practicable  to  make  the  rule  more  pre- 
cise than  a  mere  approximation  towards 
definiteness.  Facts  wliich  are  latent  in 
themselves,  and  only  discoverable  by  way 
of  appearances  more  or  less  symptomatic 
of  the  existence  of  the  main  fact,  may, 
from  tlieir  very  nature,  be  siiown  by  the 
opinion  of  witnesses  as  to  the  existence 
of  such  appearances  or  symptoms  :  such 


are  the  state  of  health  or  of  the  affec- 
tions, as  already  stated.  Sanity  is  a 
question  of  the  same  character.  So,  too, 
upon  inquiries  as  to  the  state  or  amount 
of  one's  property,  when  the  facts  are  too 
numerous  and  evanescent  to  be  given  in 
detail,  those  acquainted  with  the  facts 
are  allowed  to  express  an  opinion  which 
is  the  mere  grouping  of  the  facts.  So, 
too,  as  to  the  marketable  condition  and 
value  of  property,  and  many  other  ques- 
tions where  it  is  not  practicable  to  give 
more  definite  knowledge,  opinions  are  re- 
ceived. In  some  cases,  these  opinions 
must  come  from  experts,  who  have  ac- 
quired special  skill  in  detecting  the  con- 
nection between  certain  external  symp- 
toms and  their  latent  causes  ;  and  in 
other  cases,  all  persons  are  supposed  to 
have  such  knowledge  and  experience  as 
to  entitle  their  opinions  to  be  weighed 
by  the  jury.  The  testimony  of  experts 
is  necessary  upon  all  such  questions  as 
require  special  study  and  experience  in 
order  to  form  reliable  judgments.  The 
distinction  is  fairly  enough  illustrated  by 
the  question  of  sickness  or  healtii.  All 
witnesses  are  competent  to  form  a  reli- 
able opinion  whether  one  whom  they 
have  opportunity  to  observe  appears  to 
be  sick  or  well  at  the  time;  or  whether 
one  is  seriously  disabled  by  a  wound  or 
a  blow.  But  if  the  inquiry  were  more 
definite,  as  to  the  particular  state  of 
disease  under  which  one  is  laboring,  and 
its  curable  or  fatal  character;  or  as  to 
the  dangerous  or  fatal  character  of  a 
wound  or  blow  ;  or  in  what  particular 
mode,  or  with  what  species  of  weapon  or 
instrument,  such  blow  or  wound  was 
inflicted, —  special  study,  observation,  and 
experience  might  be  requisite  in  order  to 
express  an  opinion  entitled  to  the  dignity 
of  being  regarded  as  evidence.  lu  Ash- 
land V.  Marlborough,  99  Mass.  47,  it 
was  held,  that  a  non-expert  may  testify 
to  the  acts  and  appearance  of  another 
which  inilicate  disease  or  disability,  but 
cannot  give  his  opinion  on  the  subject. 
But  in  Parker  v.  B.  &  II.  Steamboat  Co., 
109  Mass.  449,  the  same  court  held,  that 
a  non-expert  miglit  testify  as  to  the  com- 
parative healtii  of  a  person.  This  dis- 
tinction between  testifying  to  an  appear- 
ance of  disease  and  to  an  opinion  of  it 
is  certainly  fine.     Wiiat  appears  to  ono 


CHAP,  m.] 


EXAiriNATION  OP  WITNESSES. 


495 


§  440  h.  Opinions  of  biased  witnesses.  In  weighing  the  testimony 
of  biased  witnesses,  however,  a  distinction  is  observed  between 
matters  of  opinion  and  matters  of  fact.  Such  a  witness,  it  is  said, 
is  to  be  distrusted  when  he  speaks  to  matters  of  ojnnion  ;  but  in 
matters  of  fact,  his  testimony  is  to  receive  a  degree  of  credit  in 
proportion  to  the  probability  of  the  transaction,  the  absence  or  e  s- 
tent  of  contradictory  proof,  and  the  general  tone  of  his  evidence.^ 

§  441.  Opinion  as  to  legal  or  moral  obligations.  But  witnesses 
are  not  receivable  to  state  their  views  on  matters  of  legal  or  moral 
obligation,  nor  on  the  manner  in  which  other  persons  would  prob- 
ably be  influenced,  if  the  parties  acted  in  one  way  rather  than  in 


in  such  cases  is  scarcely  different  from 
his  opinion.  Com.  v.  Cunningham,  104 
Mass.  545;  Com.  v.  Dorsey,  103  Mass. 
412.  And  subsequently  tlie  same  court 
(Com.  V.  Sturtevant,  117  Mass.  122),  after 
a  careful  examination  of  numerous  cases, 
arrived  at  the  conclusion  that  "  common 
observers,  having  special  opportunities 
for  observation,  may  testify  to  their 
opinions  as  conclusions  of  fact,  although 
they  are  not  experts,  if  the  subject-matter 
to  which  the  testimony  relates  cannot  be 
reproduced  or  described  to  the  jury 
precisely  as  it  appeared  to  the  witness 
at  the  time,  and  the  facts  upon  which 
the  witness  is  called  to  express  his  opin- 
ion are  such  as  men  in  general  are 
capable  of  comprehending."  Opinions 
have  been  held  admissible  as  to  the  origin 
of  sounds,  State  v.  Slierborn,  46  N.  H. 
497 ;  as  to  hoaltli  of  another,  Wilkinson 
V.  Moreley,  30  Ala.  562 ;  Barker  v.  Cole- 
man, 35  Ala.  221 ;  as  to  the  condition 
of  another's  eyesight,  Adams  v.  People, 
N.  Y.  Ct.  of  App.,  Nov.  1875 ;  whether 
certain  hairs  are  human,  Com.  v.  Dorsey, 
103  Mass.  412 ;  the  meaning  of  certain 
gestures,  or  tones  of  voice,  and  to  whom 
they  apply,  Leonard  v.  Allen,  11  Cush. 
(Mass  )  241 ;  and  see /^os/,  vol.  ii.  §  417,  n. ; 
the  correspondence  between  boots  and 
footprints,  Com.  v.  Pope,  103  Mass.  440 ; 
that  a  horse  appears  to  be  diseased  in  the 
foot,  31  N.  H.  485;  or  to  be  frightened  or 
sulky,  46  Id.  23 ;  or  that  a  person  appears 
to  feel  sad,  Calvin  v.  Dwight,  6  Gray 
(Mass.),  444  ;  or  to  be  intoxicated,  People 
V.Eastwood,  14  N.  Y.  562;  or  as  to  the  qual- 
ities of  a  horse.  State  v.  Avery,  44  N.  H. 
382 ;  or  of  one's  pecuniary  responsibility, 
Bank  of  Middlesex  y.  Rutland,  33  Vt. 
414.  So,  also,  as  to  values  and  prices, 
Nellis  V.  McCarn,  35  Barb.  (N.  Y.)  105; 
Derby  v.  Gallup,  5  Minn.  119;  Brady  v. 
Brady,  8  Allen  (Mass.),  101 ;  McDonald 
V.  Christie,  42  Barb.  (N.  Y.)  36.  So,  also, 
opinions  as  to   times  and  distances  are 


admissible,  Campbell  v.  State,  23  Ala. 
44;  but  not  an  opinion  as  to  liow  far  a 
conversation,  said  to  have  been  carried 
on  in  an  ordinary  tone,  but  not  heard  by 
the  witness,  could  be  heard,  Hardenberg 
V.  Cockroft,  5  Daly,  N.  Y.  C.  C.  P.  79, 
1874.  A  witness  may  also  give  his  opin- 
ion as  to  the  age  of  a  person  who  pleads 
infancy  in  an  action  on  a  contract,  the 
witness  having  had  an  opportunity  to 
observe  the  appearance  of  the  person  at 
the  time  tlie  contract  was  made.  Benson 
V.  McFadden,  Sup.  Ct.  Ind.,  Nov.  1875. 
Whetiier  a  non-expert  is  qualified  to  give 
an  opinion  is  for  the  judge.  A  farmer 
is  qualified  to  give  an  opinion  as  to  the 
effect  of  constructing  a  railroad  through 
the  farm  of  his  neighbor,  upon  the  con 
venience  and  expense  of  carrying  it  on. 
Tucker  v.  Mass.  Cent.  R.  R.,  118  Mass. 
546.  And,  generally,  opinions,  like  other 
testimony,  are  competent  in  the  class  of 
cases  in  which  tliey  are  the  best  testi- 
mony ;  as  where  a  mere  description,  with- 
out an  opinion,  would  generally  convey  a 
very  imperfect  idea  of  the  force,  meaning, 
and  inherent  character  of  the  things  de- 
scribed. Non-experts  may  give  their 
opinions  on  questions  of  identity,  resem- 
blance, apparent  condition  of  body  or 
mind,  intoxication,  insanity,  sickness, 
health,  value,  conduct,  and  bearing, 
whether  friendly  or  hostile,  and  the  like. 
Doe,  J.,  in  State  v.  Pike,  49  N.  H.  398, 
a  very  elaborate  and  valuable  opinion. 
In  Hamilton  v.  People,  Sup.  Ct.  Mich.,  13 
Am.  L.  Reg.  n.  s.  679,  it  is  held,  upon 
tlie  same  ground,  that  the  opinion  of  one 
witness  as  to  the  credibility  of  another  is 
admissible.] 

^  Lockwood  V.  Lockwood,  2  Curt.  209; 
Dillon  V.  Dillon,  3  Curt.  96,  102.  [Where 
a  party  to  a  suit  is  a  competent  witness, 
he  may  give  his  testimony  as  an  expert, 
if  qualified.  Dickenson  v.  Fitchburg,  13 
Gray,  546.] 


496 


LAW  OF  EVIDENCE. 


[PAKT  m. 


another.^  Therefore  the  opinions  of  medical  practitioners  upon 
the  question,  whether  a  certain  physician  had  honorably  and 
faithfully  discharged  his  duty  to  his  medical  brethren,  have  been 
rejected.2  So  the  opinion  of  a  person  conversant  with  the  busi- 
ness of  insurance,  upon  the  question,  whether  certain  parts  of  a 
letter,  which  the  broker  of  the  insured  had  received,  but  which 
he  suppressed  when  reading  the  letter  to  the  underwriters,  were 
or  were  not  material  to  be  communicated,  has  been  held  inad- 
missible ;3  for,  whether  a  particular  fact  was  material  or  not  in 
the  particular  case  is  a  question  for  the  jury  to  decide,  under  the 
circumstances.*  Neither  can  a  witness  be  asked,  what  would  have 
been  his  own  conduct  in  the  particular  case.^  But  in  an  action 
against  a  broker  for  negligence,  in  not  procuring  the  needful 
alterations  in  a  policy  of  insurance,  it  has  been  held,  that  other 
brokers  might  be  called  to  say,  looking  at  the  policy,  the  invoices, 
and  the  letter  of  instructions,  what  alterations  a  skilful  broker 
ought  to  have  made.^ 


^  Per  Ld.  Denman,  C.  J.,  in  Campbell 
V.  Rickards,  6  B.  &  Ad.  840 ;  s.  c.  2  N.  & 
M.  542.  But  where  a  libel  consisted  in 
imputing  to  the  plaintiff  that  he  acted 
dishonorably,  in  withdrawing  a  horse 
which  had  been  entered  for  a  race  ;  and 
he  proved  by  a  witness  that  the  rules  of 
the  jockey  club  of  which  he  was  a  mem- 
ber permitted  owners  to  withdraw  their 
horses  before  the  race  was  run  ;  it  was 
held  that  the  witness,  on  cross-examina- 
tion, might  be  asked  whether  such  con- 
duct as  he  had  described  as  lawful  under 
those  rules  would  not  be  regarded  by 
liim  as  dishonorable.  Greville  v.  Chap- 
man, 5  Ad.  &  El.  N.  8.  731. 

2  Ramadge  v.  Ryan,  9  Bing.  333. 

8  Campl)ell  v.  Rickards,  5  B.  &  Ad. 
840,  in  wjiicli  the  case  of  Rickards  v. 
Murdoek,  10  B.  &  C.  527,  and  certain 
other  decisions  to  the  contrary,  are  con- 
sidered and  overruled.  See  accordingly, 
Carter  f.  Boehm,  3  Burr.  1905,  1918 ; 
Durrel  r.  Bederley,  1  Holt's  Cas.  283; 
iTefferson  Ins.  Co.  v.  Cotheal,  7  Wend.  72, 
79  [Joyce  v.  Maine  Insurance  Co.,  45 
Maine,  168]. 

*  Rawlins  v.  Desborough,  2  AI.  &  Rob. 
329 ;  Westbury  v.  Aberdein,  2  M.  &  W. 
207. 

5  Bcrthon  v.  Loughman,  2  Stark.  258. 

6  Chapman  i^.  Walton,  10  Bing.  57. 
Upon  the  question,  whether  the  opinion 
of  a  person,  conversant  with  the  business 
of  insurance,  is  admissible,  to  .show  tliat 
the  rate  of  the  premium  would  have  been 


affected  by  the  communication  of  partic- 
ular facts,  there  has  been  mucii  diversity 
of  opinion  among  judges,  and  the  cases 
are  not  easily  reconciled.  See  Phil.  & 
Am.  on  Evid.  899  ;  2  Stark.  Evid.  880. 
But  the  later  decisions  are  against  the  ad- 
missibility of  the  testimony,  as  a  general 
rule.  See  Campbell  v.  Rickards,  5  B.  & 
Ad.  840.  Perliaps  the  following  observa- 
tions of  Mr.  Starkie,  on  this  subject,  will 
be  found  to  indicate  the  true  ])rinciplc  of 
discrimination  among  the  cases  wliicli  call 
for  the  application  of  the  rule.  "  When- 
ever the  fixing  the  fair  price  and  value 
upon  a  contract  to  insure  is  matter  of 
skill  and  judgment,  acting  according  to 
certain  general  rules  and  principk's  of 
calculation,  applied  to  the  i)articular  cir- 
cumstances of  each  individual  case,  it 
seems  to  be  matter  of  evidence  to  show 
whether  the  facts  suppressed  would  have 
been  noticed  as  a  term  in  the  particular 
calculation.  It  would  not  be  difficult  to 
propound  instances,  in  which  the  materi- 
ality of  the  fact  withheld  would  be  a 
question  of  pure  scienoe ;  in  other  in- 
stances, it  is  very  pos.sible  that  mere 
common  sense,  independent  of  any  pecul- 
iar skill  or  experience,  would  be  sufficient 
to  comprehend  that  the  disclosure  was 
material,  and  its  sujipression  fraudulent, 
although  not  to  understand  to  what  ex- 
tent the  risk  was  increased  by  that  fact. 
In  intermediate  cases,  it  seems  to  be  dif- 
ficult in  principle  wholly  to  exclude  the 
evidence,  although  its  importance  may 


CHAP,  m.] 


EXAMINATION   OF   WITNESSES. 


497 


§  442.  Party  vouches  for  his  witness.  When  a  party  offers  a 
witness  in  proof  of  his  cause,  he  thereby,  in  general,  represents 
him  as  worthy  of  belief.  He  is  presumed  to  know  the  character 
of  the  witnesses  he  adduces  ;  and  having  thus  presented  them  to 
the  court,  the  law  will  not  permit  the  party  afterwards  to  impeach 
their  general  reputation  for  truth,  or  to  impugn  their  credibility  by 
general  evidence,  tending  to  show  them  to  be  unworthy  of  beUef. 
For  this  would  enable  him  to  destroy  the  witness  if  he  spoke 
against  him,  and  to  make  him  a  good  witness  if  he  spoke  for  him, 
with  the  means  in  his  hand  of  destroying  his  credit  if  he  spoke 


against  him.^ 


vary  exceedingly  according  to  circum- 
stances." See  -J.  Stark.  Evid.  887,  888 
(3d  Lend,  ed.),  649  (6tii  Am.  ed.).  [In 
Joyce  I'.  Maine  Insurance  Company,  45 
Maine,  168,  it  was  decided  that  an  expert 
in  insurance  matters  could  not  be  per- 
mitted to  give  his  opinion  whether  "  the 
rate  of  premium  for  insurance  would  be 
increased  by  vacating  a  dwelling-house." 
The  condition,  made  part  of  the  contract, 
made  the  insurance  void  and  of  no  effect 
if  the  risk  should  be  increased  by  any 
means  whatever  within  the  control  of 
the  insured.  It  was  said  not  to  be  a  ques- 
tion of  science  or  skill.  So  it  has  been 
held,  and  for  a  like  reason,  that,  under 
substantially  similar  terms  of  the  con- 
tract, insurance  experts  could  not  be 
permitted  to  testify  whether  "leaving  a 
dwelling-house  unoccupied  for  a  consid- 
erable length  of  time  "  was  an  increase 
of  risk.  Luce  v.  Dorchester  Mut.  Fire 
Ins.  Co.,  105  Mass.  298.  But  in  Foy  v. 
.iEtna  Ins.  Co.,  3  Allen  (N.  B.),  29,  such 
evidence  was  admitted  without  objection. 
And  generally  their  opinions  as  to  the 
materiality  of  certain  facts  to  the  risk 
are  incompetent.  Jefferson  Ins.  Co.  v. 
Cotheal,  7  Wend.  (N.  Y.)  72;  Hartford 
Prot.  Ins.  Co.  v.  Harmer,  2  Ohio  St.  452; 
Hill  V.  Lafayette  Ins.  Co.,  2  Mich.  476. 
Contra,  Kern  v.  South  St.  Louis  Mut. 
Fire  Ins.  Co.,  40  Mo.  19.  But  in  Schenck 
V.  Mercer  County  Mutual  Insurance  Com- 
pany, 4  Zab.  (N.  J.),  447,  a  fireman  was 
allowed  to  testify  whether  the  risk  of 
fire  was  increased  by  certain  alterations. 
But  it  was  decided  in  the  case  last  cited 
from  Massachusetts,  that  the  question, 
whether  such  leaving  a  dwelling-house 
unoccupied  is  material  to  the  risk,  might 
be  tested  by  the  question  whether  under- 
writers generally  would  in  such  case 
charge  a  higher  premium.  And  see  also 
Merriam  v.  Middlesex  Ins.  Co.,  21  Pick. 
162;  Daniels  v.  Hudson  River  Fire  Ins. 


Co.,  12  Cash.  (Mass.)  416.  The  first 
question  was  said  to  be  as  to  a  subject 
within  common  knowledge,  as  to  which 
opinions  were  inadmissible,  while  the 
latter  related  to  a  matter  which  was 
within  the  peculiar  knowledge  of  persons 
versed  in  the  business  of  insurance.  The 
distinction,  though  fine,  seems  to  be 
sound  ;  it  is  between  an  inadmissible  opin- 
ion and  an  admissible  fact.  The  infer- 
ence of  increased  risk,  based  upon  the 
fact  known  to  him  of  a  higher  rate  of 
premium  in  such  cases,  cannot  be  stated 
by  the  witness ;  but  he  may  state  the 
fact,  which  is  to  him  a  matter  of  special 
knowledge,  and  from  this  the  jury  may 
draw  the  inference  of  increased  risk. 
That  persons  having  this  peculiar  knowl- 
edge may  testify  tiiereto  is  a  well-settled 
rule  of  evidence.  Webber  v.  Eastern 
Railroad  Co.,  2  Met.  (Mass.)  147;  Mulvy 
V.  Mohawk  Valley  Ins.  Co.,  5  Gray 
(Mass.),  541  ;  Hawes  v.  New  England  Ins. 
Co.,  2  Curtis,  C.  Ct.  229;  Lyman  v. 
State  Ins.  Co.,  14  Allen  (.Mass.),  329; 
Hartman  v.  Keystone  Ins.  Co.,  21  Penn. 
St.  406;  Quin  v.  National  Ass.  Co.,  Jones 
&  Cary  (Irish),  316.  In  life  insurance, 
physicians  may  give  their  opinion  as  to 
the  causes  of  disease;  and  whether  a  par- 
ticular disease  or  infirmity  or  injury  or 
habit  is  the  cause  of  death,  or  tends  to 
shorten  life,  Miller  i-.  Mut.  Ben.  Life 
Ins.  Co.,  31  Iowa,  216 ;  but  neither  they 
nor  experts  in  insurance  can  be  allowed 
to  give  their  opinion  upon  the  question 
whether  the  applicant  was  an  insurable 
subject,  nor  whether  certain  facts  render 
the  subject  uninsurable,  Rawls  v.  Am. 
Life  Ins.  Co.,  36  Barb.  357  ;  s.  c.  affirmed, 
27  N.  Y.  282.] 

1  Bull.  N.  P.  297 ;  Ewer  v.  Ambrose, 
3  B.  &  C.  746  ;  Stockton  v.  Demuth,  7 
Watts,  39;  Smith  v.  Price,  8  Watts,  447. 
But  where  a  witness  testified  to  the  jury, 
contrary  to  her  statement  in  a  former 


32 


498 


LAW  OF  EVIDENCE. 


[part  in. 


§  443.  Exceptions.  But  to  tliis  general  rule  there  are  some  ex- 
ceptions. For,  where  the  witness  is  not  one  of  the  party's  own 
selection,  but  is  one  whom  the  laio  obliges  him  to  call,  such  as  the 
subscribing  witness  to  a  deed,  or  a  will,  or  the  like  :  here  he  can 
hardly  be  considered  as  the  witness  of  the  party  calling  him,  and 
therefore,  as  it  seems,  his  character  for  truth  may  be  generally 
impeached. 1  But,  however  this  may  be,  it  is  exceedingly  clear 
that  the  party,  calling  a  witness,  is  not  precluded  from  proving 
the  truth  of  iinj  particular  fact,  by  any  other  competent  testimony, 
in  direct  contradiction  to  what  such  witness  may  have  testified ; 
and  this  not  only  where  it  appears  that  the  witness  was  innocently 
mistaken,  but  even  where  the  evidence  may  collaterally  have 
the  effect  of  showing  that  he  was  generally  unworthy  of  belief.^ 

§  444.  Previous  inconsistent  statements.  Whether  it  be  compe- 
tent for  a  party  to  prove  that  a  witness  whom  he  has  called,  and 
whose  testimony  is  unfavorable  to  his  cause,  had  previously  stated 
the  facts  in  a  different  manner,  is  a  question  upon  which  there 
exists  some  diversity  of  opinion.  On  the  one  hand,  it  is  urged, 
that  a  party  is  not  to  be  sacrificed  to  his  witness  ;  that  he  is  not 
represented  by  him,  nor  identified  with  him ;  and  that  he  ought 
not  to  be  entrapped  by  the  arts  of  a  designing  man,  perhaps  in 
the  interest  of  his  adversary.^     On  the  other  hand,  it  is  said,  that 


deposition  given  in  the  same  cause,  it  was 
held  not  improper  for  the  judge  to  order 
tlie  deposition  to  be  read,  in  order  to  im- 
peach the  credit  of  the  witness.  Rex  v. 
Oldroyd,  Riiss.  &  Ky.  88.  [A  witness  who 
has  testified  in  cliief  that  he  does  not 
know  certain  facts,  cannot,  altliougii  lie 
sliows  a  disposition  to  conceal  what  he 
knows,  be  asked  by  the  party  calling  him 
whether  lie  did  not  on  a  former  occasion 
swear  to  his  ktunvledge  of  those  facts, 
as  the  object  of  the  question  could  only 
be  "  to  di.sparage  the  witness  and  show 
him  unworthy  of  credit  with  the  jury, 
which  was  inadmissible."  Common- 
wealth ('.  Welch,  4  Gray,  535,  537 ;  San- 
chez V.  The  People,  22  N.  Y.  147.  The 
rule   extends   even   to   the   case  of  one 

farty  making  his  adversarv  a  witness, 
lolbrook  i;.  Mix,  1  E.  I).  "Smith,  154. 
But  a  party  may  call  Ins  adversary  and 
examine  him  as  if  he  were  cross-examin- 
ing his  advcrsarv's  witness.  Brubaker 
V.  Taylor,  76  IVnn.  St.  83.] 

1  Lowe  V.  Jolliffe,  1  W.  Bl.  365  ;  Toth. 
on  Obi.  by  Evans,  vol.  ii.  p.  232,  App. 
No.  10 ;  Williams  r.  Walker,  2  Rich.  Eq. 
2yi.     And   see    Goodtitle    v.    Clayton,  4 


Burr.  2224 ;  Cowden  v.  Reynolds,  12  S. 
&  R.  281.  But  see  Whitakcr  v.  Salis- 
bury, 15  Pick.  544,  545  ;  Dennett  r.  Dow, 
6  Shepl.  19 ;  Brown  v.  Bellows,  4  Pick. 
179  [Sliorey  v.  Hussey,  32  Maine,  579]. 

2  Bull.  N.  P.  297  ;  Alexander  v.  Gib- 
son, 2  Cam])b.  555;  Richardson  v.  Allan, 
2  Stark.  334  ;  Ewer  v.  Ambrose,  3  B. 
&  C.  746  ;  6  D.  &  R.  127 ;  s.  c.  4  B.  &  C. 
25 ;  Friedlander  v.  London  Assur.  Co., 
4  B.  &  Ad.  193 ;  Lawrence  v.  Barker,  5 
Wend.  305,  per  Savage,  C.  J. ;  Cowden 
V.  Reynohls,  12  S.  &  R.  281 ;  Bradley  v. 
Ricardo,  8  Hing.  57;  Jackson  v.  Leek, 
12  Wend.  105  \  Stockton  v.  Jtmuth,  7 
Watts,  39 ;  Brown  v.  Bellows,  4  Pick. 
179,  194;  Perry  v.  Massey,  1  Bail.  32; 
Spencer  v.  White,  1  Ired.  239;  Dennett 
V.  Dow,  5  Shepl.  19;  McArthur  v.  Hurl 
hurt,  21  Wend.  190;  Attor.-Gen.  i-.  Hitch- 
cock, 1  Exch.  91,  11  Jur.  378  ;  The  Loch- 
libo,  14  Jur.  792;  1  Eng.  L.  &  Eq.  645 
[Hall  r.  Houghton,  37  Maine,  411 ;  Soavy 
f.  Dearborn,  19  N.  H.  351 ;  Brown  v. 
Wood,  19  Miss.  475]. 

3  Phil.  &  Am.  on  Evid.  904,  905;  2 
Phil.  Evid.  447. 


CHAP,  in.] 


EXAMINATION   OF   WITNESSES. 


499 


to  admit  such  proof  would  enable  the  party  to  get  the  naked 
declarations  of  a  witness  before  the  jury,  operating,  in  fact,  as  in- 
dependent evidence ;  and  this,  too,  even  where  the  declarationa 
were  made  out  of  court,  by  collusion,  for  the  purpose  of  being  thus 
introduced.!  But  the  weight  of  authority  seems  in  favor  of  ad- 
mitting the  party  to  show  that  the  evidence  has  taken  him  by 
surprise,  and  is  contrary  to  the  examination  of  the  witness  pre- 
paratory to  the  trial,  or  to  what  the  party  had  reason  to  believe 
he  would  testify ;  or,  that  the  witness  has  recently  been  brought 
under  the  influence  of  the  other  party,  and  has  deceived  the  party 
calling  him.  For  it  is  said  that  this  course  is  necessary  for  his 
protection  against  the  contrivance  of  an  artful  witness  ;  and  that 
the  danger  of  its  being  regarded  by  the  jury  as  substantive  evi- 
dence is  no  greater  in  such  cases  than  it  is  where  the  contradic- 
tory declarations  are  proved  by  the  adverse  party .^ 


1  Ibid. ;  Smith  v.  Price,  8  Watts,  447 ; 
Wright  V.  Beckett,  1  M.  &  Rob.  414,  428, 
per  BoUand,  B. 

2  Wright  V.  Beckett,  1  M.  &  Rob.  414, 
416,  per  Ld.  Denman  ;  Rice  v.  New  Eng. 
Marine  Ins.  Co.,  4  Pick.  439 ;  Rex  v.  Old- 
royd,  Russ.  &  Ry.  88,  90.  per  Ld.  Ellen- 
borough,  and  Mansfield,  C.  J. ;  Brown  v. 
Bellows,  4  Pick.  179;  The  State  v.  Nor- 
ris,  1  Hay  w.  437,  4-38  ;  2  Phil.  Evid.  450- 
463 ;  Dunn  v.  Aslett,  2  M.  &  Rob.  122 ; 
Bank  of  Northern  Liberties  ;'.  Davis,  0 
Watts  &  Serg.  285;  infra,  §  467,  n.  But 
see  Holdsworth  v.  Mayor  of  Dartmouth, 
2  M.  &  Rob.  153 ;  Reg.  v.  Ball,  8  C.  & 
P.  745;  and  Reg.  v.  Parr,  8  C.  &  P. 
768,  where  evidence  of  this  kind  was  re- 
jected. In  a  recent  case,  however,  this 
point  has  been  more  fully  considered,  and 
it  was  held,  that  if  a  witness  unexpectedly 
gives  evidence  adverse  to  the  party  call- 
ing him,  the  party  may  ask  him  if  he 
has  not,  on  a  particular  occasion,  made  a 
contrarj-  statement.  And  tlie  question 
and  answer  may  go  to  the  jury,  with  the 
rest  of  the  evidence,  the  judge  caution- 
ing them  not  to  infer,  from  the  question 
alime,  that  the  fact  suggested  in  it  is  true. 
In  such  case,  the  party  who  called  the  wit- 
ness may  still  go  on  to  prove  his  case  by 
other  wi  tnesses,  notwithstanding  their  tes- 
timony, to  relative  facts,  may  contradict, 
and  thus  indirectly  discredit,  the  former 
witness.  Thus,  in  an  action  for  an  as- 
sault and  battery,  if  the  plaintiff's  first 
witness  testifies  that  the  plaintiff,  in  con- 
versation, ascribed  the  injury  to  an  acci- 
dent, the  plaintiff  may  prove  that,  in  fact, 
no  such  accident  occurred.  And  if  the 
witness  denies  a  material  fact,  and  states 


that  persons  connected  with  the  plaintiff 
offered  him  money  to  assert  the  fact,  the 
plaintiff  may  not  only  still  go  on  to  prove 
the  fact,  but  he  may  also  disprove  the 
subornation  ;  for  this  latter  fact  has  now 
become  relevant,  though  no  part  of  the 
main  transaction,  inasmuch  as  its  truth 
or  falsehood  may  fairly  influence  the 
belief  of  the  jury  as  to  the  whole  case. 
Melhuish  v.  Collier,  15  Ad.  &  El.  n.  s. 
378.  [See  The  Lochlibo,  1  Eng.  Law  & 
Eq.  645  ;  Greenough  v.  Eccles,  5  Com.  B. 
N.  s.  786.  In  a  recent  case  in  New  York, 
after  a  careful  examination  of  all  the 
authorities,  the  court  held  that  the  party 
who  is  surprised  by  the  statements  of  a 
witness  may  ask  him  if  he  has  not  made 
statements  inconsistent  with  liis  present 
testimony,  for  the  purpose  of  satisfying 
him  that  he  is  in  error,  and  getting  him 
to  correct  the  mistake ;  and  though  the 
proceeding  may  have  the  effect  to  impair 
the  witness's  credibility,  it  is  neverthe- 
less permissible,  unless  the  sole  effect  is 
to  discredit  him.  BuUard  v.  Pearsall,  53 
N.  Y.  2.30.  "  It  has  seemed  to  us,"  says 
Judge  Redfield,  in  his  note  to  tlie  twelfth 
edition  of  this  work,  §  442,  "that  this 
course  of  inquiry,  as  to  the  witness  hav- 
ing given  a  different  account  of  the  mat- 
ter on  another  occasion,  is  fairly  suscepti- 
ble of  being  viewed  as  an  allowable  mode 
of  cross-examination,  in  order  to  induce 
an  unwilling  witness  to  refresh  his  mem- 
ory, and  state  the  matter  more  favorably 
to  the  party.  And  if  we  allow  the  party 
to  cross-examine  his  own  witness  because 
he  seems  reluctant  or  partial,  it  would 
seem  proper  that  he  should  have  the 
ordinary  range  of  cross-examination,  so 


500 


LAW   OF   EVIDENCE. 


[PAET  ni. 


§  445.  Cross-examination.  When  a  witness  has  been  examined 
in  chief,  the  other  party  has  a  right  to  cross-examine  him.^  But 
a  question  often  arises,  whether  the  witness  has  been  so  examined 
in  chief,  as  to  give  the  other  party  this  right.  If  the  witness  is 
called  merely  for  the  purpose  of  producing  a  paper,  which  is  to  be 
proved  by  another  witness,  he  need  not  be  sworn.^  "Whether  the 
right  of  cross-examination,  that  is,  of  treating  the  witness  as  the 
Mituess  of  the  adverse  party,  and  of  examining  him  by  leading 
questions,  extends  to  the  whole  case,  or  is  to  be  limited  to  the 
matters  upon  which  he  has  already  been  examined  in  chief,  is  a 
point  upon  which  there  is  some  diversity  of  opinion.  In  Eng- 
land, when  a  competent  witness  is  called  and  sworn,  the  other 
party  will,  ordinarily,  and  in  strictness,  be  entitled  to  cross-ex- 
amine him,  though  the  party  calling  him  does  not  choose  to 
examine  him  in  chief;  ^  unless  he  was  sworn  by  mistake  ;*  or, 
unless  an  immaterial  question  having  been  put  to  him,  his  fur- 
ther examination  in  chief  has  been  stopped  by  the  judge.^  And 
even  where  a  plaintiff  was  under  the  necessity  of  calling  the  de- 
fendant in  interest  as  a  witness,  for  the  sake  of  formal  proof  only, 
he  not  being  party  to  the  record,  it  has  been  held,  that  he  was 
thereby  made  a  witness  for  all  purposes,  and  might  be  cross-ex- 
amined to  the  whole  case.^  In  some  of  the  American  courts  the 
same  rule  has  been  adopted  ; "  but  in  others,  the  contrary  has 


far  as  it  lias  any  tendency  to  elicit  a  state- 
ment of  tlie  facts  more  favorable  to  the 
party,  and  is  not  exclusively  of  a  ten- 
dency to  discredit  his  own  witness." 
See  also  Coulter  v.  American  Exp.  Co., 
66  N.  Y.  585 ;  post,  §  469.  Under  a  late 
English  statute,  17  &  18  Vic.  c.  125,  the 
English  courts  now  allow  the  party  to 
contradict  his  own  witness  by  showing  a 
statement  made  by  him  in  direct  contra- 
diction to  Ills  evidence.  Dean  v.  Kniglit, 
1  F.  &.  K.  483 ;  Jackson  v.  Thomason,  10 
W.  K.  42.  So  in  Mossachiisells.  Stat. 
18G9,  c.  425;  Day  u.  Cooley,  118  Mass. 
624.] 

1  If  tlie  witness  dies  after  he  has  been 
examined  in  ciiief,  and  before  liis  cross- 
examination,  it  has  been  lield  tliat  his 
testimony  is  ina<linissil)le.  Kissani  r. 
Forrest,  25  Wend.  U51.  But  in  equity,  its 
adinis8il)ility  is  in  the  discretion  of  the 
court,  in  view  of  tlie  circumstances. 
Gass  V.  Stinson,  3  Sumn.  104-108;  iti/ni, 
§  654.  [Where  the  State  has  summoned 
a  witness,  and  the  witness  has  been 
sworn,  but  not  examined,  the  prisoner 
has  no  right  to  cross-examine  him  as  to 


the  whole  case.  Austin  v.  State,  14  Ark. 
555.  If  a  witness  gives  no  testimony  in 
his  examination  in  chief,  he  cannot  be 
cross-examined  for  the  purpose  of  dis- 
crediting him.  Bracegirdle  v.  Bailey,  1 
F.  &  F.  536.  At  a  preliminary  hearing, 
to  determine  the  competency  of  evidence, 
the  judge  may  refuse  to  permit  cross- 
examination.  Com.  V.  Morrell,  y'J  Mass. 
542.] 

2  Perry  v.  Gibson,  1  Ad.  &  El.  48; 
Davis  V.  Dale,  1  Mo.  &  M.  514;  Read  v. 
James,  1  Stark.  132;  Ru<h  v.  Smith,  1 
C.  M.  &  R.  94 ;  Summers  v.  Moseley,  2 
C.  &  M.  477. 

3  Rex  V.  Brooke.  2  Stark.  472 ;  Fhil- 
lips  V.  Earner,  1  Esp.  357 ;  Dicki.isOn  v. 
Shee,  4  Esp.  07 ;  Reg.  v.  Murphy,  1  Armst. 
Macartn.  &  Ogle,  204. 

*  Clifford  V.  Hunter,  3  C.  &  P.  16; 
Rush  V.  Smith,  1  C.  M.  &  R.  94;  Wood 
V.  Mackinson,  2  M.  &  Rob.  273. 

6  Creevy  v.  Carr,  7  C  &  P.  64. 

•^  Morgan  v.  Brydges,  2  Stark.  814. 

7  Moody  V.  Rowell,  17  Pick.  400,  498; 
Jackson  r.  Varick,  7  Cowen,  238 ;  2 
Wend.   100;   Fulton  Bank   v.   Stafford, 


CHAP,  rn.] 


EXAHmTATIOX  OF  WITNESSES. 


601 


been  held  ;  ^  and  the  rule  is  now  considered  by  the  Supreme  Court 
of  the  Unil  ed  States  to  be  well  established,  that  a  party  has  no 
right  to  cross-examine  any  witness,  except  as  to  facts  and  circum- 
stances connected  with  the  matters  stated  in  his  direct  examina- 
tion ;  and  that  if  he  wishes  to  examine  him  to  other  matters,  be 
must  do  so  b}'  making  the  witness  his  own,  and  calling  him,  as 
such,  in  the  subsequent  progress  of  the  cause.^ 

§  446.  Same  subject.  The  power  of  cross-examination  has 
been  justly  said  to  be  one  of  the  principal,  as  it  certainly  is  one  of 
the  most  efficacious,  tests,  which  the  law  has  devised  for  the  dis- 
covery of  truth.  By  means  of  it,  the  situation  of  the  witness 
with  respect  to  the  parties,  and  to  the  subject  of  litigation,  his 
interest,  his  motives,  liis  inclination  and  prejudices,  his  means  of 
obtaining  a  correct  and  certain  knowledge  of  the  facts  to  which 
he  bears  testimony,  the  manner  in  which  he  has  used  those  means, 
his  powers  of  discernment,  memory,  and  description,  are  all  fully 
investigated  and  ascertained,  and  submitted  to  the  consideration 
of  the  jury,  before  whom  he  has  testified,  and  who  have  thus  had 
an  opportunity  of  observing  his  demeanor,  and  of  determining 
the  just  weight  and  value  of  his  testimony.  It  is  not  easy  for  a 
witness,  who  is  subjected  to  this  test,  to  impose  on  a  court  or 


2  Wend  483  fLinslev  v.  Lovelv,  26  Vt. 
123;  Beal  i'.  Nichols,"2  Gray,  202.  This 
case  decides,  also,  that,  where  a  witness  is 
called  only  to  prove  the  execution  of  an 
instrument,  and  is  cross-examined  gener- 
ally by  the  other  party,  the  party  calhng 
him  has  not  a  right  to  cross-examine  liim 
upon  the  new  matter  upon  which  he  was 
examined  by  the  otlier  party,  unless  al- 
lowed by  the  court  in  its  discretion  to  do 
so  ;  and  he  cannot  except  to  the  ruling  of 
the  court,  tliat,  as  a  matter  of  law,  he  has 
no  right  so  to  cross-examine  him.] 

1  Harrison  v.  Rowan,  3  Wash.  580; 
EUmaker  r.  Buckley,  16  S.  &  R.  77. 

2  The  Philadelphia  &  Trenton  Rail- 
road Co.  V.  Stimpson,  14  Peters,  448, 461 ; 
Floyd  V.  Bovard,  6  Watts  &  Serg.  75.  It 
is  competent  for  the  party,  after  having 
closed  his  case  so  far  as  relates  to  the  evi- 
dence, to  introduce  additional  evidence, 
by  the  cross-examination  of  the  witnesses 
on  the  otlier  side,  for  the  purpose  of  more 
fully  proving  facts  not  already  sufficiently 
proved  ;  the  subject  being  within  the  dis- 
cretion of  the  judge.  Commonwealth  v. 
Eastman,  1  Cash.  l89,  217.  [In  a  recent 
case  in  New  Jersey,  Donnelly  v.  State,  2 
Dutcher,  463,  it  was  decided,  that  the 
defendant  in  a  criminal  prosecution  could 


not  ask  the  prosecutor's  witness  any  ques^ 
tion  not  connected  with  the  examination 
in  chief,  and  which  was  material  only  by 
way  of  defence.  But  that  is  not  consist- 
ent with  the  general  practice  in  such 
cases.  All  questions  put  upon  cross-exam- 
ination are  supposed  to  be  material  only 
to  the  adversary's  case.  The  examina- 
tion in  chief  is  supposed  to  have  drawn 
out  all  the  testimony  of  the  witness  mate- 
rial to  the  case  of  the  party  calling  liini. 
And,  whether  the  cross-examination  has 
reference  to  the  same  points  raised  by  the 
direct  examination,  or  to  others  material 
to  the  defence,  the  witness  is  to  be  re- 
garded as  the  witness  of  tiie  party  call- 
ing him.  The  only  proper  doubt  is 
whether  the  adversary  shall  be  allowed 
to  open  his  case  on  cross-examination,  or 
shall  be  allowed  to  recall  the  witnesses  at 
the  proper  time  in  putting  in  his  own 
case  ;  and  this  rests  in  the  discretion  of 
the  court.  Post,  §  447.  Where  a  wit- 
ness, cross-examin^ed  in  part,  without 
fault  of  the  party  who  summoned  him, 
disappears,  so  that  his  cross-examination 
cannot  be  completed,  it  is  not  the  right 
of  tlie  cross-examining  party  to  have  the 
whole  evidence  stricken  out.  Burden  v. 
Pratt,  Sup.  Ct.  N.  Y.,  8  Al.  L.  J.  381.] 


502 


LAW   OF   EVIDENCE. 


[part  in. 


jury ;  for  however  artful  the  fabrication  of  falsehood  may  be,  it 
cannot  embrace  all  the  circumstances  to  which  a  cross-examina- 
tion may  be  extended.^ 


1  1  Stark.  Evid.  160,  161.  On  the  sub- 
ject of  examining  and  cross-examining 
witnesses  viva  voce,  Quintilian  gives  the 
following  instructions  :  "  Primum  est, 
iiosse  testein.  Nam  timidus  terreri,  stultus 
deci])i,  iracundus  concitari,  ambitiosus 
intlari,  longus  protrahi  potest ;  prudens 
verb  et  constanSjVt'l  tanquam  inimicus  et 
pervicax  dimittendus  statim,  vel  non 
iuterrogatione,  sed  brevi  interlocutione 
patroni,  refutandus  est ;  aut  aliquo,  si 
continget,  urbane  dicto  refrigerandus ; 
aut,  si  quid  in  ejus  vitain  dici  poterit,  in- 
famia  criminum  destruendus.  Probos 
quosdam  et  verecundos  non  aspere  in- 
cessere  prof uit ;  nam  saepe,  qui  adversus 
insectantem  pugnassent,  modestia  miti- 
gantur.  Omnis  autem  interrogatio,  aul 
in  causa  est,  ant  extra  causam.  In  causa 
(sicut  accusatori  prsecepimus),  patronus 
quoque  altius,  unde  nihil  suspecti  sit  re- 
petita  percontatione,  priora  sequentibns 
applicando,  s£epe  eo  perducit  homines,  ut 
invitis,  quod  prosit,  extorqueat.  Ejus  roi, 
sine  dubio,  nee  disciplina  uUa  in  scliolis, 
nee  exercitatio  traditur ;  et  naturali  magis 
acumine,  aut  usu  contingit  base  virtus. 
*  *  *  Extra  causam  quoque  multa,  quae 
prosint,  rogari  solent,  de  vita  testium 
alioruin,  de  sua  quisque,  si  turpitudo,  si 
humilitas,  si  amicitia  accusatoris,  si  ini- 
micitiee  cum  reo,  in  quibusaut  dicant  all- 
quid,  quod  prosit,  aut  in  mendacio  vel 
cupiditate  liedendi  deprehendantur.  Sed 
in  primis  intcrroijalio  debet  esse  circum- 
spectu ;  quia  multa  contra  patronos  ven uste 
testis  saepe  respondet  cique  praecipue 
vulgo  favetur ;  tum  verbis  quammaxime 
ex  medio  sumptis ;  ut  qui  rogatur  (is 
autem  saepius  imperitus)  intelligat,  autne 
intelligere  se  neget,quod  interrogantis  non 
leve  frigus  est."  Quintil.  Inst.  Orat.  lib. 
5,  c.  7.  Mr.  Alison's  observations  on  the 
same  subject  are  equally  interesting  both 
to  the  student  and  the  practitioner.  He 
observes  :  "  It  is  often  a  convenient  way 
of  examining,  to  ask  a  witness,  whether 
such  a  thing  was  said  or  done,  because  tlie 
thing  mentioned  aids  his  recollection,  and 
brings  him  to  that  stage  of  the  proceed- 
ing on  which  it  is  desired  that  he  should 
dilate.  But  this  is  not  alwaj-s  fair  ;  and 
when  any  subject  is  ajiproached,  on  which 
his  evidence  is  expected  to  be  really  im- 
portant, the  proper  course  is  to  ask  him 
what  was  done,  or  what  was  said,  or  to 
tell  his  own  story.  In  this  way,  also,  if 
the  witness  is  at  all  intelligent,  a  more 
consistent  and  intelligent  statement  will 


generally  be  got,  than  by  putting  separate 
questions ;  for  the  witnesses  generally 
think  over  the  subjects,  on  which  they  are 
to  be  examined  in  criminal  cases,  so  often, 
or  they  have  narrated  them  so  frequently 
to  others,  that  they  go  on  much  more 
fluently  and  distinctly,  when  allowed  to 
follow  the  current  of  their  own  ideas,  than 
when  they  are  at  every  moment  inter- 
rupted or  diverted  by  the  examining 
counsel.  Where  a  witness  is  evidently 
prevaricating  or  concealing  the  truth,  it 
is  seldom  by  intimidation  or  sternness  of 
manner  that  he  can  be  brought,  at  least 
in  this  country,  to  let  out  the  truth. 
Such  measures  may  sometimes  terrify 
a  timid  witness  into  a  true  confession  ; 
but  in  general  they  only  confirm  a  hard- 
ened one  in  his  falsehood,  and  give  him 
time  to  consider  how  seeming  contradic- 
tions may  be  reconciled.  The  most 
eflfectual  method  is  to  examine  rapidly 
and  minutely,  as  to  a  number  of  subor- 
dinate and  apparently'  trivial  points  in 
his  evidence,  concerning  which  there  is 
little  likelihood  of  his  being  prepared 
with  falsehood  ready  made  ;  and  where 
such  a  course  of  interrogation  is  skilfully 
laid,  it  is  rarely  that  it  fails  in  exposing 
perjury  or  contradiction  in  some  parts  of 
the  testimony  wliich  it  is  desired  to  over- 
turn. It  frequently  happens,  that,  in  the 
course  of  such  a  rapid  examination,  facts 
most  material  to  the  cause  are  elicited, 
which  are  eitlier  denied,  or  but  partially 
adiuitted  before.  In  such  cases,  there  is 
no  good  ground  on  which  the  facts  thus 
reluctantly  extorted,  or  which  have  es- 
caped the  witness  in  an  unguarded  mo- 
ment, can  be  laid  aside  by  the  jury. 
Without  doubt,  they  come  tainted  from 
the  polluted  channel  through  which  they 
are  adduced  ;  but  still  it  is  generally  easy 
to  distinguish  what  is  true  in  such  depo- 
sitions from  what  is  false,  because  the 
first  is  studiously  withheld,  and  the  sec- 
ond is  as  carefully  put  forth ;  and  it  fre- 
quently happens,  that  in  this  way  the 
most  important  testimony  in  a  case  is 
extracted  from  the  most  unwilling  wit- 
ness, which  oidy  comes  with  the  more 
effect  to  an  intelligent  jury,  because  it 
has  emerged  by  the  force  of  examination, 
in  opi)o8iti()n  to  an  obvious  desire  to 
conceal."  See  Alison's  Practice,  646, 
647.  See  also  the  remarks  of  Mr.  Evans 
on  cross  examination,  in  his  Appendix 
to  Poth.  on  Obi.  No.  16,  vol.  ii.  pp.  233, 
234. 


CHAP,  in.]  EXAMINATION  OF   WITNESSES.  603 

§  447.  Extent  of  right  to  cross-examine.  Whether,  when  a  party 
is  once  entitled  to  cross-examine  a  witness,  this  right  continues 
through  all  the  subsequent  stages  of  the  cause,  so  that  if  the  party 
should  afterwards  recall  the  same  witness,  to  prove  a  part  of  his 
own  case,  he  may  interrogate  him  by  leading  questions,  and  treat 
him  as  the  witness  of  the  party  who  first  adduced  him,  is  also  a 
question  upon  which  different  opinions  have  been  held.  Upon 
the  general  ground,  on  which  this  course  of  examination  is  per- 
mitted at  all,  namely,  that  every  witness  is  supposed  to  be 
inclined  most  favorably  towards  the  party  calling  him,  there 
would  seem  to  be  no  impropriety  in  treating  him,  throughout  the 
trial,  as  the  witness  of  the  party  who  first  caused  him  to  be  sum- 
moned and  sworn.  But  as  the  general  course  of  the  examination 
of  witnesses  is  subject  to  the  discretion  of  the  judge,  it  is  not  easy 
to  establish  a  rule,  which  shall  do  more  than  guide,  without 
imperatively  controlling,  the  exercise  of  that  discretion.^  A 
party,  however,  who  has  not  opened  his  own  case,  will  not  be 
allowed  to  introduce  it  to  the  jury  by  cross-examining  the  wit- 
nesses of  the  adverse  party ,2  though,  after  opening  it,  he  may 
recall  them  for  that  purpose. 

§  448.  Collateral  facts.  We  have  already  stated  it  as  one  of 
the  rides  governing  the  production  of  testimony,  that  the  evi- 
dence offered  must  correspond  with  the  allegations,  and  be  con- 
fined to  the  point  in  issue.  And  we  have  seen  that  this  rule 
excludes  all  evidence  of  collateral  facts,  or  those  which  afford  no 
reasonable  inference  as  to  the  principal  matter  in  dispute.^  Thus, 
where  a  broker  was  examined  to  prove  the  market  value  of  cer- 
tain stocks,  it  was  held  that  he  was  not  compellable  to  state  the 
names  of  the  persons  to  whom  he  had  sold  such  stocks.'*  As  the 
plaintiff  is  bound,  in  the  proof  of  his  case,  to  confine  his  evidence 
to  the  issue,  the  defendant  is  in  like  manner  restricted  to  the 
same  point ;  and  the  same  rule  is  applied  to  the  respective  par- 

1  1  Stark.  Evid.  162 ;  Moody  v.  Kowell,  the  defendant  began  to  cross-examine  him 
17  Pick.  498  ;  supra,  §  435.  as  to  matters  of  defence,  and  the  court 

2  EUmaker  v.  Bulkley,  16  S.  &  R.  77  ;  ruled,  that  this  cross-examination  should 
1  Stark.  Evid.  164.  [Tlie  rule  in  the  text  be  deferred  until  the  defendant's  case  was 
is  stated  to  be  tlie  strict  rule  in  Burke  v.  opened,  when  the  witness,  being  recalled. 
Miller,  7  Cash.  547,  550,  although  a  de-  could  be  cross-examined  by  the  defendant; 
parture  from  it,  being  discretionary  with  and  this  ruling  was  sustained.  See  Moody 
the  judge,  is  not  open  to  exception.     At  v.  Rowell,  17  Pick.  499.] 

the  trial  of  this  cause  in  the  court  be-  *  Supra,  §§  51,  52. 

low,theplaintiff  called  a  witness  merely  to  *  Jonau  v.  Ferrand,  3  Rob.  (La.)  366. 

prove  the  formal  execution  of  a  deed,  and 


504  LAW   OF  EVIDENCE.  [PART  HI. 

ties,  through,  all  the  subsequent  stages  of  the  cause,  —  all  ques- 
tions as  to  collateral  facts,  except  in  cross-examination,  being 
fctrictly  excluded.  The  reasons  of  this  rule  have  been  already 
intimated.  If  it  were  not  so,  the  true  merits  of  the  controversy 
might  be  lost  sight  of,  in  the  mass  of  testimony  to  other  points, 
in  which  they  would  be  overwhelmed ;  the  attention  of  the  jury 
would  be  wearied  and  distracted ;  judicial  investigations  would 
become  interminable ;  the  expenses  might  be  enormous,  and  the 
characters  of  witnesses  might  be  assailed  by  evidence  which  they 
could  not  be  prepared  to  repel.^  It  may  be  added,  that  the 
evidence  not  being  to  a  material  point,  the  witness  could  not  be 
punished  for  perjury,  if  it  were  false.^ 

§  449.  Same  subject.  In  cross-examinations,  however,  this  rule 
is  not  usually  applied  with  the  same  strictness  as  in  examinations 
in  chief ;  but,  on  the  contrary,  great  latitude  of  interrogation  is 
sometimes  permitted  by  the  judge,  in  the  exercise  of  his  discre- 
tion, where,  from  the  temper  and  conduct  of  the  witness,  or 
other  circumstances,  such  course  seems  essential  to  the  discovery 
of  the  truth,^  or,  where  the  cross-examiner  will  undertake  to 
show  the  relevancy  of  the  interrogatory  afterwards,  by  other  evi- 
dence.^ On  this  head,  it  is  difficult  to  lay  down  any  precise 
rule.^  But  it  is  a  well-settled  rule,  that  a  witness  cannot  he 
cross-examined  as  to  any  fact,  which  is  collateral  and  irrelevant  to 
the  issue  merely  for  the  purpose  of  contradicting  him  by  other 
evidence,  if  he  should  deny  it,  thereby  to  discredit  his  testi- 
mony.^ And,  if  a  question  is  put  to  a  witness  which  is  collateral 
or  irrelevant  to  the  issue,  his  answer  cannot  be  contradicted  by 
the  party  who  asked  the  question ;  but  it  is  conclusive  against 
him.'^     But  it  is  not  irrelevant  to  inquire  of  the  witness,  whether 

1  Phil.  &  Am.  on  Evid.  900,  910.  §§  455,  456.     Anrl  this  rule  obtains  where 

2  But  a  question,  having  no  bearing  on  tiie  party  to  a  suit  or  prosecution  takes 
the  matter  in  issue,  may  be  made  material  the  stand  as  a  witness.  Marx  v.  People, 
by  its  relation  to  the  witness's  credit,  and  G3  Barb.  (N.  Y.)  618.  Nor  can  a  witness 
false  swearing  thereon  will  be  perjury,  be  asked,  on  cross-examination,  a  ques- 
Keg.  V.  Overton,  2  Mod.  Cr.  Cas.  2(33.  tion,  otherwise  irrelevant,  in  order  to  test 

**  [Mayhew  v.  Thayer,  8  Gray,  172.]  bis  moral  sense.    Cora.  v.  Shaw,  4  Gush. 

*  llaigh  V.   Belcher,  7  C.  &  P.  3»9;  (Mass.)  503]. 
suprn,  §  52.  7  Harris   v.   Tippett,  2   Campb.  627 ; 

s  Lawrence  v.  Barker,  6  Wend.  .305.  Odiorne  i'.  Winklev,  2  Gall.  61,  53  ;  Ware 

«  Spenceley  v.  De  Willott,  7  East,  108 ;  v.  Ware,  8  Greenl"  52  ;  Rex  v.  Watson,  2 

1  Stark.  Evid.  164;  Lee's  case.  2  Lewin's  Stark.  116,  149;  Lawrence  v.  Barker,  5 

Cr.  Cas.  154;  Harrison  y.  Gordon,  Id.  156  Wend.  301,  805  ;  Meagoe  v.   Simmons,  3 

I  Coombs   V.    Winchester,   39    N.    H.    1;  C.  &P.  75;  Crowley  i-.  Page,  7  C.  &  P. 

lenman  v.  Lester,  12  C.  B.  n.  8.  776;  789;  Commonwealth  w.  Buzzell,  16  Pick. 

B.  c.  9  Jur.   N.   8.   601.     See  also,  post,  157,  158 ;  Palmer  v.  Trower,  14  Eng.  L. 


CHAP,  in.] 


EXAMINATION  OF  WITNESSES. 


605 


he  has  not  on  some  former  occasion  given  a  different  account  of 
the  matter  of  fact,  to  which  he  has  already  testified,  in  order  to 
lay  a  foundation  for  impeaching  his  testimony  by  contradicting 
him.  The  inquiry,  however,  in  such  cases,  must  be  confined  to 
matters  oifact  only  ;  mere  opinions  wliich  the  witness  may  have 
formerly  expressed  being  inadmissible,  unless  the  case  is  such  as 
to  render  evidence  of  opinions  admissible  and  material.^  Thus, 
if  the  witness  should  give,  in  evidence  in  chief,  his  opinion  of  the 
identity  of  a  person,  or  of  his  handwriting,  or  of  his  sanity,  or 


&  Eq.  470  [Com.  v.  Cain,  14  Gray 
(Mass.),  7  ;  Fletcher  v.  B.  &  M.  R.  R.,  1 
Allen  (Mass.),  9].  Thus,  if  he  is  asked 
whether  he  has  not  said  to  A  that  a  bribe 
had  been  offered  to  him  by  the  party  by 
whom  he  was  called ;  and  he  denies  having 
so  said ;  evidence  is  not  admissible  to  prove 
that  lie  did  so  state  to  A.  Attorney-Gen. 
V.  Hitchcock,  11  Jiir.  478;  s.  c.  1  Exch. 
91.  So  where  a  witness  was  asked,  on 
cross-examination,  and  for  the  sole  pur- 
pose of  ati'ecting  his  credit,  whether  he 
had  not  made  false  representations  of  the 
adverseparty's  responsibility,  his  negative 
answer  was  held  conclusive  against  tlie 
party  cross-examining.  Howard  v.  City 
Eire  Ins.  Co.,  4  Denio,  502.  But  where  a 
witness,  on  his  cross-examination,  denied 
that  he  had  attempted  to  suborn  another 
person  to  testify  in  favor  of  the  party  who 
had  summoned  him,  it  was  held,  that  his 
answer  was  not  conclusive,  and  that  testi- 
mony was  admissible  to  contradict  him,  as 
it  materially  affected  his  credibility.  Mor- 
gan V.  Frees,  S.  C.  N.  York,  1  Am.  Law 
Reg.  02.  Where  a  witness,  called  by  the 
plaintiff  to  prove  the  handwriting  in  issue, 
swore  it  was  not  that  of  the  defendant,  and 
another  paper,  not  evidence  in  the  cause, 
being  shown  to  him  by  the  plaintiff,  he 
swore  that  this  also  was  not  the  defend- 
ant's, the  latter  answer  was  conclusive 
against  the  plaintiff.  Hughs  v.  Rogers,  8 
M.  &  W.  123.  See  also  Griffiths  v.  I  very, 
11  Ad.  &  El.  322 ;  Philad.  &  Trenton  Rail- 
road Co.  t'.  Stimpson,  14  Peters,  461 ; 
Harris  v.  Wilson,  7  Wend.  57  ;  Tennant  v. 
Hamilton,  7  Clark  &  Fin.  122  ;  The  State 
V.  Patterson,  2  Iredell,  346.  [The  rule 
which  excludes  all  evidence  tending  to 
contradict  the  statements  of  a  witness  as 
to  collateral  matters  docs  not  apply  to  any 
facts  immediately  and  properly  connected 
with  the  main  subject  of  inquiry.  Every 
thing  whicli  goes  to  affect  the  credit  of  a 
witness,  as  to  the  particular  facts  to  which 
he  is  called  to  testify,  is  material  and  ad- 
missible. Thus,  where  testimony  to  a 
fact  is  founded  mainly  upon  a  written 
memorandum,  which  the  witness  testifies 


was  made  by  himself  at  the  time,  and 
which  was  produced  by  him  at  a  former 
trial,  and  since  has  been  lost,  the  other 
party  may  show,  for  the  purpose  of  dis- 
crediting the  witness,  tliat  the  memoran- 
dum then  produced  was  not  in  his  iiand- 
writing.  Commonwealth  v.  Hunt,  4  Gray, 
421.  In  Harrington  v.  Lincoln,  2  Gray, 
133,  a  witness  on  cross-examination  by  the 
plaintiff  answered  in  the  negative  the  fol- 
lowing question  :  "  Did  you  not  say  to  W. 
(another  witness),  after  he  had  left  the 
stand,  that  if  you  had  been  on  the  stand  in 
his  place,  when  cross-examined  by  the  de- 
fendant's counsel,  you  would  have  said 
something,  even  if  it  had  been  untrue  ?  " 
and  it  was  held,  that  the  plaintiff  could 
not  be  allowed  to  contradict  this  answer 
by  other  evidence,  because  it  was  collat- 
eral, and  did  not  tend  to  show  any  par- 
tiality or  bias  on  the  part  of  the  witness  in 
favor  of  the  defendant,  or  any  attempt  to 
influence  or  induce  W.  to  give  false  testi- 
mony favorable  to  the  defendant ;  had  it 
been  of  that  character,  it  would  have  been 
competent  to  put  in  the  contradictory 
evidence.  See  also  Commonwealth  v. 
Goddard,  2  Allen,  148] 

1  Elton  V.  Larkins,  6  C.  &  P.  385; 
Daniels  v.  Conrad,  4  Leigh,  401,  405. 
But  a  witness  cannot  be  cross-examined 
as  to  what  he  has  sworn  in  an  affidavit, 
unless  the  affidavit  is  produced.  Saint- 
hill  V.  Bound,  4  Esp.  74  ;  Rex  v.  Edwards, 
8  C.  &  P.  26 ;  Reg.  v.  Taylor,  Id.  726. 
If  the  witness  does  not  recollect  saying 
that  which  is  imputed  to  him,  evidence 
may  be  given  that  he  did  say  it,  provided 
it  is  relevant  to  the  matter  in  issue.  Crow- 
ley V.  Page,  7  C.  &  P.  789.  [Nute  v.  Nute, 
41  N.  H.  60.  Nor  is  it  competent  to  show 
that  the  witness  has  given  an  opinion  out 
of  court  relative  to  the  subject-matter  of 
the  suit,  inconsistent  with  the  conclusion 
which  the  facts  he  testifies  to  at  the  trial 
will  warrant.  The  statement  must  not 
only  relate  to  the  issue,  but  be  a  matter 
of  fact,  and  not  merely  a  former  opinion 
Holmes  v.  Anderson,  IS  Barb.  420.] 


506  LAW   OF  EVrDENCE.  [PART  m. 

the  like,  he  may  be  asked  whether  he  has  not  formerly  expressed 
a  different  opinion  upon  the  same  subject ;  but  if  he  has  simply 
testified  to  a  fact,  his  previous  opinion  of  the  merits  of  the  case 
is  inadmissible.  Therefore,  in  an  action  upon  a  marine  policy, 
where  the  broker,  who  effected  the  policy  for  the  plaintiff,  being 
called  as  a  witness  for  the  defendant,  testified  that  he  omitted  to 
disclose  a  certain  fact,  now  contended  to  be  material  to  the  risk, 
and  being  cross-examined  whether  he  had  not  expressed  his  opin- 
ion that  the  underwriter  had  not  a  leg  to  stand  upon  in  the  de- 
fence, he  denied  that  he  had  said  so;  this  was  deemed  conclusive, 
and  evidence  to  contradict  him  in  this  particular  was  rejected.^ 

§  450.  Same  subject.  So,  also,  it  has  been  held  not  irrelevant 
to  the  guilt  or  innocence  of  one  charged  with  a  crime,  to  inquire 
of  the  witness  for  the  prosecution,  in  cross-examination,  whether 
he  has  not  expressed  feelings  of  hostility  towards  the  prisoner.^ 
The  like  inquiry  may  be  made  in  a  civil  action  ;  and  if  the  wit- 
ness denies  the  fact,  he  may  be  contradicted  by  other  witnesses.^ 
So,  also,  in  assumpsit  upon  a  promissory  note,  the  execution  of 
which  was  disputed,  it  was  held  material  to  the  issue,  to  inquire 
of  the  subscribing  witness,  she  being  a  servant  of  the  plaintiff, 
whether  she  was  not  his  kept  mistress.* 

§  451.  Where  ■witness  may  refuse  to  ansvrer.  Exposure  to  penalty. 
In  regard  to  the  ^^r^YvYe^e  of  witnesses,  in  not  being  compellable  to 
answer,  the  cases  are  distinguishable  into  several  classes.  (1.) 
Where  it  reasonably  appears  that  the  answer  will  have  a  ten- 
dency to  expose  the  witness  to  a  penal  liability,  or  to  any  kind 
of  punishment,  or  to  a  criminal  charge.  Here  the  authorities  ar'e 
exceedingly  clear  that  the  witness  is  not  bound  to  answer.^  And 

1  Elton  V.  Larkins,  5  C.  &  P.  385  8  Atwood  v.  Welton,  7  Conn.  66  [Mar- 
[Murphy  v.  Com.,  23  Gratt.  (Va.)  960J.  tin  v.  Farnliam,  6  Foster,  195;  Drew  v. 

2  Uex  y.  Yewin.  cited  2  Carapb.  638.  Wood,  6  Id.  303;  Cooley  v.  Norton,  4 
[So  of  a  witness  for  the  prisoner,  if  he  Cash.  93;  Long  v.  Lamkin,  9  Id.  361 ; 
has  a  friendly  feeling  for  him.  Moore  Newton  v.  Harris,  2  Seldcn,  345;  Com- 
V.  People,  N.  Y.  Ct.  of  App.,  9  Alb.  L.  J.  monwealth  v.  Byron,  14  Gray,  31]. 

155.     i3ut  unless  the  question  answered  *  Thomas  v.  David,  6  C.  &  P.  350,  per 

has  a  direct  tendency  to  siiow   bias,  the  Coleridge,  J. 

witness  cannot  be  contradicted.  Attorney-  5  Southard  y.  Rexford,  6  Cowen,  254  ; 
General  v.  Hitchcock.  1  Ex.  91.  The  1  Burr's  Trial,  245  ;  E.  India  Co.  i-.  Camp- 
extent  to  whicii  a  witness  may  be  cross-  bell,  1  Ves.  227  ;  Ta-xton  v.  Douglass,  19 
examined  as  to  facts  otherwise  iinmate-  Ves.  225;  Cates  i'.  Hardacre,  3  Taunt, 
rial,  for  the  purpose  of  testing  his  bias  424 ;  MacBride  v.  MacBride,  4  Esp.  248  ; 
and  credibility,  is  ordinarily  witliin  tiie  Ilex  v.  Lewis,  Id.  225 ;  Kex  v.  Slaney,  5 
discretion  of  the  court,  no  rule  of  law  C.  &P.  213;  Rex  i'.  Pegler,  5  C.  &  P.  521 ; 
being  violated.  Miller  v.  Smith,  112  Dodd  v.  Norris,  3  Campb.  519  ;  Malony  v. 
Mass.  470;  Com.  v.  Lyden,  113  Mass.  Bartly,  Id.  210.  If  he  is  wrongfully  com- 
452.     See  also  post,  §  458.]  pellcd  to  answer,  what  he  says  will  be  re- 


CHAP,  III.] 


EXAMINATION  OF   WITNESSES. 


607 


he  may  claim  the  protection  at  any  stage  of  the  inquiry,  whether 
he  has  ah-eady  answered  the  question  in  part,  or  not  at  all.^  If 
the  fact  to  which  he  is  interrogated  forms  but  one  link  in  the 
chain  of  testimony,  whicli  is  to  convict  liim,  he  is  protected.  And 
whether  it  may  tend  to  criminate  or  expose  the  witness  is  a  point 
upon  which  the  court  are  bound  to  instruct  him  ;  2' and  which  the 
court  will  determine,  under  all  the  circumstances  of  the  case  ;  ^ 
but  without  requiring  the  witness  fully  to  explain  how  he  might 
be  criminated  by  the  answer,  wliich  the  truth  would  oblige  him  to 
give.  For  if  he  were  obliged  to  show  how  the  effect  would  be 
produced,  the  protection  which  this  rule  of  law  is  designed  to 
afford  him  would  at  once  be  annihilated.^    But  the  court  will  not 


garded  as  obtained  by  compulsion,  and 
cannot  be  given  in  evidence  against  him. 
Reg.  V.  Garbett,  1  Denis.  C.  C.  236  ;  '2 
Car.  &  K.  474.  And  see  supra,  §  193;  7 
Law  Rev.  19-30. 

1  Reg.  V.  Garbett,  1  Denis.  C.  C.  236 ; 
2  Car.  &  K.  474  ;  Ex  parte  Cossens,  Buck, 
Banlfr.  Cas.  531,  545. 

2  Close  V.  Olney,  1  Denio,  319.  [See 
Commonwealth  v.  Shaw,  4  Cush.  594.] 

3  This  point,  however,  is  not  univer- 
sally agreed.  In  Fisher  v.  Ronalds,  17 
Jur.  393,  Jervis,  C.  J.,  and  Maule,  J., 
were  of  opinion  that  it  was  for  the  wit- 
ness to  say,  on  his  oath,  whether  he  be- 
lieved that  the  question  tended  to  crimi- 
nate him  ;  and  if  he  did,  that  his  answer 
was  conclusive.  Williams,  J.,  thought 
the  point  not  necessary  then  to  be  de- 
cided, [s.  c.  16  Eng.  Law  &  Eq.  417, 
andn.  See  also  Osborne  v.  London  Dock 
Co.,  29  Id.  389;  Janvrin  v.  Scammon,  9 
Fost.  280 ;  Fernandez,  ex  parte,  10  C.  B. 
N.  s.  3.] 

*  The  People  v.  Mather,  4  Wend.  229; 
1  Burr's  Trial,  245;  Southard  i'.  Rexford, 
6  Cowen,  254,  255;  Bellinger,  in  error,  v. 
The  People,  8  Wend.  595.  In  the  first  of 
these  cases,  this  doctrine  was  stated  by 
the  learned  judge,  in  the  following  terms  : 
"  The  principal  reliance  of  the  defendant, 
to  sustain  the  determination  of  the  judge, 
is  placed,  I  presume,  on  the  rule  of  law, 
that  protects  a  witness  in  refusing  to  an- 
swer a  question  which  will  have  a  ten- 
dency to  accuse  him  of  a  crime  or  misde- 
meanor. Where  the  disclosures  he  may 
make  can  be  used  against  him  to  procure 
his  conviction  for  a  criminal  offence,  or  to 
charge  him  with  penalties  and  forfeitures, 
he  may  stop  in  answering,  before  he  ar- 
rives at  the  question,  the  answer  to  which 
may  show  directly  his  moral  turpitude. 
The  witness,  who  knows  what  the  court 


does  not  know,  and  what  he  cannot  com- 
municate without  being  a  self-accuser,  is 
to  judge  of  the  effect  of  his  answer ;  and,  if 
it  proves  a  link  in  the  chain  of  testimony, 
which  is  sufficient  to  convict  him,  when 
the  others  are  made  known  of  a  crime, 
he  is  protected  by  law  from  answering  the 
question.  If  there  be  a  series  of  ques- 
tions, the  answer  to  all  of  which  would 
establish  his  criminality,  the  party  cannot 
pick  out  a  particular  one  and  say,  if  that 
be  put,  the  answer  will  not  criminate  him. 
'  If  it  is  one  step  having  a  tendency  to 
criminate  him,  he  is  not  compelled  to  an- 
swer.' (16  Ves.  242.)  The  same  privi- 
lege that  is  allowed  to  a  witness  is  the 
right  of  a  defendant  in  a  court  of  equity, 
when  called  on  to  answer.  In  Parkhurst 
V.  Lowten,  2  Swanst.  215,  the  Chancellor 
held,  that  the  defendant '  was  not  only  not 
bound  to  answer  the  question,  the  answer 
to  which  would  criminate  him  directly, 
but  not  any  which ,  however  remotely  con- 
nected with  the  fact,  would  have  a  ten- 
dency to  prove  him  guilty  of  simony.' 
The  language  of  Chief  Justice  Marshall, 
on  Burr's  trial,  is  equally  explicit  on  this 
point.  'Many  links,' he  says, 'frequently 
compose  that  chain  of  testimony,  which  is 
necessary  to  convict  an  individual  of  a 
crime.  It  appears  to  the  court  to  be  the 
true  sense  of  the  rule,  that  no  witness  is 
compellable  to  furnish  any  one  of  them 
against  himself.  It  is  certainly  not  only 
a  possible  but  a  probable  case,  that  a  wit- 
ness, by  disclosing  a  single  fact,  may  com- 
plete the  testimony  against  himself,  and, 
to  every  effectual  purpose,  accuse  himself 
entirely,  as  he  would  by  stating  ev(;ry  cir- 
cumstance which  would  be  required  for 
his  conviction.  That  fact  of  itself  would 
be  unavailing,  but  all  other  facts  without 
it  would  be  insufficient.  While  that  re- 
mains concealed  in  his  own  bosom,  he  is 


508 


LAW   OF  E^TDENCE. 


[PAKT  in. 


prevent  the  witness  from  answering  it,  if  he  chooses  :  they  will 
only  atUej^iee  him  of  his  right  to  decline  it.^  This  rule  is  also 
administered  in  chancery,  where  a  defendant  will  not  be  compelled 
to  discover  that  which,  if  answered,  would  tend  to  subject  him  to 
a  penalty  or  punishment,  or  which  might  lead  to  a  criminal  accu- 
sation, or  to  ecclesiastical, censures.2  But  in  all  cases  where  the 
witness,  after  being  a4v#*4ised  of  his  privilege,  chooses  to  answer, 
he  is  bound  to  answer  every  thing  relative  to  the  transaction.^ 


safe  ;  but  draw  it  from  thence,  and  he  is 
exposed  to  a  prosecution.  The  rule  whicli 
declares  that  no  man  is  compellable  to  ac- 
cuse himself  would  most  obviously  be 
infringed,  by  compelling  a  witness  to  dis- 
close a  factof  this  description.'  (1  Burr's 
Trial,  244.)  My  conclusion  is,  that  where 
a  witness  claims  to  be  excused  from  an- 
swering a  question,  because  the  answer 
may  disgrace  iiim,  or  render  him  infa- 
mous, the  court  must  see  that  the  answer 
may,  without  the  intervention  of  other 
facts,  fix  on  him  moral  turpitude.  Where 
lie  claims  to  be  excused  from  answering, 
because  his  answer  will  have  a  tendency 
to  implicate  him  in  a  crime  or  misde- 
meanor, or  will  expose  him  to  a  penalty 
of  forfeiture,  then  the  court  are  to  deter- 
mine, wiiether  the  answer  he  may  give  to 
the  question  can  criminate  him,  directly 
or  indirectly,  by  furnishing  direct  evi- 
dence of  his  guilt,  or  by  establishing  one 
of  many  facts,  wliich  together  may  con- 
stitute a  cliaiii  of  testimony  sufficient  to 
warrant  his  conviction,  but  wiiich  one  fact 
of  itself  could  not  produce  such  result; 
and  if  tliey  think  the  answer  may  in  any 
way  criminate  him,  they  must  allow  his 
privilege,  without  exacting  from  him  to 
explain  how  he  would  be  criminated  by 
the  answer,  which  the  truth  may  oblige 
him  to  give.  If  the  witness  was  obliged 
to  show  how  the  effect  is  produced,  tiie 
protection  would  at  once  be  annihilated. 
The  means  which  he  would  be  in  that 
case  compelled  to  use  to  obtain  protection 
would  involve  tlie  surrender  of  the  very 
object,  for  the  security  of  which  the  pro- 
tection was  sought."  See  4  Wend.  252- 
254.  See  also  Short  v.  Mercier,  15  Jur. 
93 ;  1  Eng.  Law  &,  Eq.  208,  where  the 
same  point  is  discussed. 

1  4  Wend.  252-254. 

2  Story's  Eq.  I'l.  §§  524,  676,  577,  592- 
508 ;  iMcIntyre  v.  Mancius,  1(3  Johns.  592  ; 
Wigram  on  Discovery,  pp.  61,  loO,  105 
(1st  Am.  ed.);  Id.  §§  l:iU-l:J;],  271  (2d 
Lond.  ed.)  ;  Mitford's  Eq.  PI.  157-163. 

3  Dixon  V.  Vale,  1  C.  &  P.  278 ;  The 

State   V.   K ,  4   N.    H.  662;  East   i;. 

Cliapraan,  1  M.  &  Malk.  46;  s.  c.  2  C.  & 


P.  670;  Low  v.  Mitchell,  6  Shepl.  272 
[Foster  v.  Pierce,  II  Cush.  437,  430.  It 
seems  that  in  some  of  the  States,  where 
the  party  gives  testimony  to  part  of  a 
transaction  without  claiming  his  privi- 
lege of  not  testifying  to  what  may  crim- 
inate him,  he  may  be  compelled  to  state 
the  whole  ;  and  to  submit  to  a  full  cross- 
examination,  notwithstanding  his  an- 
swers tend  to  criminate  or  disgrace 
him.  But,  in  general,  a  witness  who  pro- 
ceeds inadvertently,  and  witliout  expect- 
ing to  be  asked  to  give  testimony  upon 
points  affecting  his  character  or  subject- 
ing him  to  prosecution  for  crime,  will  be 
accorded  his  privilege,  when  claimed,  al- 
though the  result  should  be  to  strike  his 
testimony  from  the  case  after  it  had  been 
partly  taken  down.  Dixon  v.  Vale,  1  C. 
&  P.  278,  by  Best,  C.J.  The  witness 
must  himself  judge,  in  the  first  instance, 
whether  the  answers  sought  will  tend  to 
prove  him  guilty  of  a  crime.  Unless  he 
is  able  to  testify  that  he  believes  they  will, 
he  is  not  entitled  to  claim  the  privilege. 
If  he  informs  the  court,  upon  oath,  tiuit 
he  cannot  testify,  without  criminating 
himself,  the  court  cannot  compel  him  to 
testify,  unless  full}'  satisfied  such  is  not 
the  fact,  i.e.,  that  the  witness  is  either 
mistaken,  or  acts  in  bad  faith  ;  in  eitlier 
of  which  cases  they  should  compel  him 
to  testify.  Chamberlain  v.  Willson,  12 
Vt.  401.  But  where  the  reason  for  not 
giving  testinumy  assigned  by  the  witness 
is  evidently  insufficient,  the  court  sliould 
compel  him  to  testify.  Mexico  &  S.  A. 
Co.  in  re  ;  Ashton's  case,  4  DeG.  &,  J.  320 ; 
8.  c.  27  Beav.  474.  It  is  not  important 
that  the  witness  is  really  innocent,  if  his 
answers  will  place  him  in  a  position  where 
he  could  not  exculpate  himself  from  legal 
presuuiptions,  although  contrary  to  tlie 
fact.  Adams  v.  Lloyd,  4  Jur.  n.  s.  500. 
But  if,  for  any  cause,  the  testimony  can- 
not be  used  against  the  witness,  he  is 
not  privileged.  The  People  v.  Kelly,  24 
N.  Y.  74 ;  nor  can  he  claim  exemption 
from  testifying  merely  because  his  testi- 
mony will  give  a  clue  to  evidence  against 
him.    Nor  will  the  fact  that  the  direct 


CHAP,  in.] 


EXAMINATION  OF  WITNESSES. 


509 


But  the  privilege  is  his  own,  and  not  that  of  the  party  ;  counsel, 
therefore,  will  not  be  allowed  to  make  the  objection.^  If  the 
witness  declines  answering,  no  inference  of  the  truth  of  the  fact 
is  permitted  to  be  drawn  from  that  circumstance.^  And  no 
answer  forced  from  him  by  the  presiding  judge,  after  he  has 
claimed  protection,  can  be  afterwards  given  in  evidence  against 
him.^  If  the  prosecution,  to  which  he  might  be  exposed,  is  barred 
by  lapse  of  time,  the  privilege  ceases,  and  the  witness  is  bound  U* 
answer.* 

§  452.  Exposure  to  pecuniary  loss.  (2.)  Where  the  witness,  by 
answering,  may  subject  himself  to  a  civil  action  or  pecuniary  loss, 
or  charge  himself  with  a  debt.  This  question  was  very  much 
discussed  in  England,  in  Lord  Melville's  case  ;  and,  being  finally 
put  to  the  judges  by  the  House  of  Lords,  eight  judges  and  the 
chancellor  were  of  opinion  that  a  witness,  in  such  case,  was  bound 
to  answer,  and  four  thought  that  he  was  not.  To  remove  the 
doubts  which  were  thrown  over  the  question  by  such  a  diversity 


examination  will  not  tend  to  criminate 
the  witness  be  sufficient,  if  proper  ques- 
tions on  cross-examination  will.  Printz 
V.  Cheeney,  11  Iowa,  469]. 

1  Thomas  v.  Newton,  1  M.  &  Malk.  48, 
n. ;  Rex  v.  Adey,  1  M.  &  Rob.  94  [Com- 
monwealth V.  Shaw,  4  Cush.  594]. 

'i  Rose  V.  Blakemore,  Ry.  &  M.  383 
[Phealing  v.  Kenderdine,  20  Penn.  St. 
354;  Carne  v.  Litchfield,  2  Mich.  340. 
See  Boyle  v.  Wiseman,  29  Eng.  Law  & 
Eq.  473,  where  the  witness  who  claimed 
the  privilege  was  one  of  the  parties  to 
the  suit]. 

3  Reg.  V.  Garbett,  2  C.  &  K.  474.  In 
Connecticut,  by  Rev.  Stat.  1849,  tit.  6, 
§  161,  it  is  enacted,  that  evidence  given 
by  a  witness  in  a  criminal  case  shall  not 
"be  at  any  time  construed  to  his  preju- 
dice." Such,  in  substance,  is  also  the 
law  of  Virginia.  See  Tate's  Dig.  p.  340; 
Virg.  Code  of  1849,  c.  199,  §  22.  [So 
in    Massachusetts,    Stat.    1870,    ch.    393, 

§1-1 

4  Roberts  v.  Allatt,  1  M.  &  Malk.  102 ; 
The  People  v.  Mather,  4  Wend.  229,  252- 
255.  [Where  a  defendant  in  a  criminal 
case  takes  the  stand  in  his  own  behalf, 
he  waives  his  right  to  protection  against 
compulsory  inculpation,  and  may  be  re- 
quired to  answer ;  and  a  refusal  to  answer 
any  questions  pertinent  to  the  case  is 
a  ground  for  adverse  comment.  State  v. 
Ola,  52  N.  H.  459  ;  Stover  v.  People,  56 
N.  Y.  315;  Cooley's  Const.  Lira.  317,  n. ; 
Com.  D.  Mullen,  97  Mass.  645;  Connors 


V.  People,  50  N.  Y.  240 ;  Andrews  v. 
Fryes,  104  Mass.  234 ;  Com.  v.  Morgan, 
107  Mass.  199.  So  the  fact  that  a  party 
refuses  to  take  the  stand,  the  law  giving 
him  the  right  to  testify  not  prohibiting 
any  such  inference,  may  be  tlie  subject 
of  adverse  comment.  State  v.  Bartlett, 
55  Me.  200.  This,  however,  should  be  con- 
fined to  such  facts  as  he  must  be  pre- 
sumed to  know.  Devries  v.  Phillips,  63 
N.  C.  53.  It  may  be  doubted  whether  a 
statute  which  prohibits  any  such  infer- 
ence is  not  nugatory,  as  contrary  to  the 
law  of  the  human  mind.  A  statute  that 
upon  proof  that  the  sun  was  shining,  no 
inference  tliat  it  was  light  should  be 
drawn  by  the  jury,  if  not  against  the  con- 
stitution of  a  State,  is  against  the  nature 
of  things.  When  a  co-defendant  in  a 
criminal  case  turns  State's  evidence,  and 
testifies  to  facts  criminating  himself,  he 
waives  all  privileges,  which  would  other- 
wise be  allowable,  of  withholding  any 
facts  pertinent  to  the  issue.  And  his 
counsel  must  also  answer,  if  called  upon. 
Hamilton  v.  People,  Sup.  Ct.  (Mich.) 
1875,  Am.  L.  Reg.  n.  s.  13,  679.  And 
there  is  no  presumption  either  way  as  to 
the  credibility  of  such  a  witness.  Com. 
V.  Wright,  107  Mass.  403.  See  also  ante, 
§  329.  A  second  at  a  duel,  who  volun- 
tarily testified  before  the  coroner,  can- 
not be  compelled  to  testify  afterwards 
at  the  trial  of  one  of  the  principals.  Cul- 
len's  case,  24  Gratt.  ( Va.J  624.] 


510  LAW   OF  EVIDENCE.  [PAUT  lH. 

of  opinion  among  eminent  judges,  a  statute  was  passed,^  declaring 
the  law  to  be,  that  a  witness  could  not  legally  refuse  to  answer 
a  question  relevant  to  the  matter  in  issue,  merely  on  the  ground 
that  the  answer  may  establish,  or  tend  to  establish,  that  he  owes 
a  debt,  or  is  otherwise  subject  to  a  civil  suit,  provided  the  answer 
has  no  tendency  to  accuse  himself,  or  to  expose  him  to  any  kind 
of  penalty  or  forfeiture.  In  the  United  States,  this  act  is  gener- 
ally considered  as  declaratory  of  the  true  doctrine  of  the  common 
law ;  and,  accordingly,  by  the  current  of  authorities,  the  witness 
is  held  bound  to  answer.^  But  neither  is  the  statute  nor  the  rule 
of  the  common  law  considered  as  compelling  a  person  interested 
in  the  cause  as  party,  though  not  named  on  the  record,  to  testify 
as  a  witness  in  the  cause,  much  less  to  disclose  any  thing  against 
his  own  interest.^ 

§  453.  Exposure  to  forfeiture.  (3.)  Where  the  answer  will  sub- 
ject the  witness  to  a  forfeiture  of  his  estate.  In  this  case,  as  well 
as  in  the  case  of  an  exposure  to  a  criminal  prosecution  or  penalty, 
it  is  well  settled  that  a  witness  is  not  bound  to  answer.^  And 
this  is  an  established  rule  in  equity  as  well  as  at  law.^ 

§  454.  Exposure  to  disgrace.  (4.)  Where  the  answer,  though  it 
will  not  expose  the  witness  to  any  criminal  prosecution  or  pen- 
alty, or  to  any  forfeiture  of  estate,  yet  has  a  direct  tendency  to 
degrade  his  character.  On  this  point  there  has  been  a  great  diver- 
sity of  opinion,  and  the  law  still  remains  not  perfectly  settled  by 
authorities.^    But  the  conflict  of  opinions  may  be  somewhat  recon- 

1  46  Geo.  ni.  c.  37 ;  2  Phil.  Evid.  420  ;  concerning  the  plaintiff,  even  though  he 
1  Stark.  Evid.  165.  It  is  so  settled  by  did  so  maliciously  and  without  reasonable 
statute  in  New  York.  2  Rev.  Stat.  405,  and  probable  cause,  and  the  plaintiff  suf- 
§  71.  fered  damages  in  consequence.     Revis  v. 

2  Bull  V.  Loveland,  10  Pick.  9  ;  Baird  Smith,  30  Eng.  Law  &  Eq.  2G8,  272,  273.1 
V.  Cochran,  4  S.  &  R.  397 ;  Nass  v.  Van  3  Rex  v.  Woburn,  10  East,  395 ;  Mau- 
Swearingcn,  7  S.  &  R.  192;  Taney  v.  ran  t>.  Lamb,  7  Cowen,  174;  Apploton  v. 
Kemp,  4  H.  &  J.  348;  Naylor  f.  Semmes,  Boyd,  7  Mass.  131;  Fenn  v.  Granger,  3 
4G.  &  J.  273;  City  Bank  w.  Bateraan,  7  Campb.  177;  The  People  v.  Irving,  1 
II.  &  J.  104;  Stoddart  v.  Manning,  2  H.  Wend.  20;  White  v.  Everest,  1  Vt.  181. 
&  G.  147 ;  Copp  t;.  Upham,  3  N.  H.  159;  *  6  Cobbcft's  P.  D.  107;  1  Hall's  Law 
Cox  V.  Hill,  3  XJhio,  411,  424;  Planters'  J.  223  ;  2  Phil.  Evid.  420. 

Rank  i;.   George,   G   Martin,   n.  s.  679;  5  Mitford's  Eq.  PI.  157,  161;  Story's 

Jones    V.    Lanier,    2    Dev.    Law,    480;  Eq.  PI.  §§  607,  846. 

Conover  v.  Bell,  0  Monr.   157  ;  Gorhara  ^  'f  lie   arguments   on   the    respective 

V.Carroll,  3  Littcll,  221;   Zoilicoffer   v.  sides  of  tliis  question  are  thus  summed  up 

Turncy,  6  Yerg.  297;  Ward  i;.  Sharp,  15  by  Mr.  Piiillips:  "  Tlic  advocates  for  a 

Vt.    115.     Tlie   contrary  seems    to  have  compulsory  power  in  cross-examination 

been  held  in    Coniiectimt.     Benjamin    v.  maintain,  that,  as  parties  are  frequently 

Hatliaway,  3  Conn.  628,  6.32.     [An  action  surprised  by  the  appearance  of  a  witness 

will  not  lie  against  a  witness,  who,  in  the  unknown  to  them,  or,  if  known,  entirely 

due  course   of  judicial   proceeding,  has  unexpected,    without   sucli    power   they 

uttered  false  and  defamatory  statements  would  have  no  adequate  means  of  ascer- 


CHAP,  in.] 


EXAMINATION  OF  WITNESSES. 


511 


ciled  by  a  distinction,  wMcli  has  "been  very  properly  taken  be- 
tween cases  where  the  testimony  is  relevant  and  material  to  the 
issue,  and  cases  where  the  question  is  not  strictly  relevant,  but  is 
collateral,  and  is  asked  only  under  the  latitude  allowed  in  a  cross- 
examination.  In  the  former  case,  there  seems  great  absurdity  in 
excluding  the  testimony  of  a  witness  merely  because  it  will  tend 
to  degrade  himself  when  others  have  a  direct  interest  in  that  tes- 
timony, and  it  is  essential  to  the  establishment  of  their  rights  of 
property,  of  liberty,  or  even  of  life,  or  to  the  course  of  public 
justice.  Upon  such  a  rule,  one  who  had  been  convicted  and  pun- 
ished for  an  offence,  when  called  as  a  witness  against  an  accom- 
plice, would  be  excused  from  testifying  to  any  of  the  transactions 
in  which  he  had  participated  with  the  accused,  and  thus  the 
guilty  might  escape.  And,  accordingly,  the  better  opinion  seems 
to  be,  that  where  the  transaction,  to  which  the  witness  is  interro- 
gated, forms  any  part  of  the  issue  to  be  tried,  the  witness  will  be 
obliged  to  give  evidence,  however  strongly  it  may  reflect  on  his 
character.! 


taining  what  credit  is  due  to  his  testi- 
mony ;  that,  on  the  cross-examination  of 
spies,  informers,  and  accomplices,  tliis 
power  is  more  particularly  necessary ;  and 
that,  if  a  witness  may  not  be  questioned 
as  to  his  character  at  the  moment  of  trial, 
the  property  and  even  the  life  of  a  party 
must  often  be  endangered.  Those  on  the 
other  side,  who  maintain  that  a  witness 
is  not  compellable  to  answer  such  ques- 
tions, argue  to  the  following  effect :  They 
say,  the  obligation  to  give  evidence 
arises  from  the  oath,  which  every  witness 
takes ;  that  by  this  oath  he  binds  him- 
self only  to  speak  touching  the  matters 
in  issue ;  and  that  such  particular  facts 
as  these,  whetiier  the  witness  has  been 
in  jail  for  felony,  or  suffered  some  infa- 
mous punishment,  or  the  like,  cannot 
form  any  part  of  the  issue,  as  appears 
evident  from  this  consideration,  that  the 
party  against  whom  the  witness  is  called 
would  not  be  allowed  to  prove  such  par- 
ticular facts  by  other  witnesses.  They 
argue,  further,  that  it  would  be  an  ex- 
treme grievance  to  a  witness,  to  be  com- 
pelled to  disclose  past  transactions  of  his 
life,  which  may  have  been  since  forgotten, 
and  to  expose  his  character  afresh  to  evil 
report,  when,  perhaps,  by  his  subsequent 
conduct,  he  may  have  recovered  the  good 
opinion  of  the  world;  that,  if  a  witness  is 
privileged  from  answering  a  question, 
though  relevant  to  the  matters  in  issue, 


because  it  may  tend  to  subject  him  to  a 
forfeiture  of  property,  with  much  more 
reason  ought  lie  to  be  excused  from  an- 
swering an  irrelevant  question,  to  the 
disparagement  and  forfeiture  of  his  char- 
acter; that  in  the  case  of  accomplices, 
in  which  this  compulsory  power  of  cross- 
examination  is  thought  to  be  more  par- 
ticularly necessarj-,  the  power  may  be 
properly  conceded  to  a  certain  extent, 
because  accomplices  stand  in  a  peculiar 
situation, being  admitted  to  give  evidence 
only  under  the  implied  condition  of  mak- 
ing a  full  and  true  confession  of  the 
whole  truth  ;  but  even  accomplices  are 
not  to  be  questioned,  in  their  cross-exam- 
ination, as  to  other  offences,  in  which 
they  have  not  been  concerned  with  the 
prisoner  ;  that,  with  respect  to  other  wit- 
nesses, the  best  course  to  be  adopted, 
both  in  point  of  convenience  and  justice, 
is  to  allow  the  question  to  be  asked,  at 
the  same  time  allowing  the  witness  to 
shelter  himself  under  his  privilege  of  re- 
fusing to  answer."  Phil.  &  Am.  on  Evid. 
pp.  917,  918;  2  Phil.  Evid.  422.  [See 
also,  post,  §  460.] 

1  2  Phil.  Evid.  421 ;  The  People  v. 
Mather,  4  Wend.  250-254,  per  Marcy,  J. ; 
Peake's  Evid.  (by  Norris)  p.  92;  Cundell 
V.  Pratt,  1  M.  &  Malk.  108;  Swift's  Evid. 
80.  So  in  Scotland.  Alison's  Practice, 
p.  628. 


512  LAW   OF   EVIDENCE.  [PART  m. 

§  455.  Same  subject.  But  where  the  question  is  not  material 
to  the  issue,  but  is  collateral  and  irrelevant,  being  asked  under 
the  license  allowed  in  cross-examination,  it  stands  on  another 
ground.  In  general,  as  we  have  already  seen,  the  rule  is,  that, 
upon  cross-examination,  to  try  the  credit  of  a  witness,  only  gen- 
eral questions  can  be  put ;  and  he  cannot  be  asked  as  to  any  col- 
lateral and  independent  fact,  merely  with  a  view  to  contradict 
him  afterwards  by  calling  another  witness.  The  danger  of  such 
a  practice,  it  is  said,  is  obvious,  besides  the  inconvenience  of  try- 
ing as  many  collateral  issues  as  one  of  the  parties  might  choose 
to  introduce,  and  Avhich  the  other  could  not  be  prepared  to  meet.^ 
Whenever,  therefore,  the  question  put  to  the  witness  is  plainly  of 
tliis  character,  it  is  easy  to  perceive  that  it  falls  under  this  rule, 
and  should  be  excluded.  But  the  difficulty  lies  in  determining, 
with  precision,  the  materiality  and  relevancy  of  the  question  when 
it  goes  to  the  character  of  the  witness.  There  is  certainly  great 
force  in  the  argument,  that  where  a  man's  liberty,  or  his  life, 
depends  upon  the  testimony  of  another,  it  is  of  infinite  impor- 
tance that  those  who  are  to  decide  upon  that  testimony  should 
know,  to  the  greatest  extent,  how  far  the  witness  is  to  be  trusted. 
They  cannot  look  into  his  breast  to  see  what  passes  there  ;  but 
must  form  their  opinion  on  the  collateral  indications  of  his  good 
faith  and  sincerity.  Whatever,  therefore,  may  materially  assist 
them  in  this  inquiry  is  most  essential  to  the  investigation  of  truth ; 
and  it  cannot  but  be  material  for  the  jury  to  understand  the  char- 

1  Spencely  v.  De  Willott,  7  East,  108,  test,  though  discussed,  perhaps,  more 
110.  Lord  Ellcnhoroutih  remarked,  that  tlian  any  other  question  in  the  law  of 
he  had  ruled  tiiis  point  again  and  again  evidence.  Of  the  more  recent  cases, 
at  the  sittings,  until  he  was  quite  tired  of  Attorney-General  v.  Hitchcock,  1  Ex. 
the  agitation  of  tiie  question,  and  there-  102,  Reg.  i'.  Burke,  8  Cox,  44,  are  worthy 
fore  he  wisiied  tlmt  a  bill  of  exceptions  of  note,  as  containing  elaborate  discus- 
should  be  tendered  by  any  party  dissatis-  sions  by  differing  judges.  In  tlie  former, 
fied  with  his  judgment,  that  the  question  it  was  hehl,  that  a  witness  who  denied 
might  be  finally  put  at  rest.  Hce  also  that  he  liad  said  a  bribe  was  offered  liim, 
Lohman  v.  The  People,  1  Comst.  379.  and  in  the  latter,  that  a  witness  who  had 
fit  is  not  relevant  to  ask  a  witness,  on  been  sworn  through  an  interpreter,  and 
iToss-examination,  if  he  had  not  offered  on  cross-examination  had  denied  that  he 
to  suborn  a  witness  in  another  case,  and  understood  English,  could  not  be  con- 
if  he  had  not  forgeil  the  name  of  the  tradicted.  In  Moore  v.  People,  7  Alb. 
defendant  to  a  note.  Com.  v.  Mosson,  L.  J.  91,  a  witness  for  the  prisoner  was 
106  Mass.  163;  South  v.  Castles,  1  Gray  asked  if  he  had  not  seen  a  certain  person 
(Mass.),  108.  The  fact  that  a  man  has  with  reference  to  the  case  on  trial,  which 
frequently  pleaded  usury  in  defence  of  he  denied ;  and  evidence  was  allowed  to 
suits  against  liim,  is  not  evidence  iin-  contradict  him  on  this  point,  as  tending 
peaching  his  character.  I'ooler  i-.  Curtis,  to  show  bins.  See  also  People  r.  Starke, 
3  N.  Y.  S.  C.  (T.  &  C.)  228;  Beard  v.  2  Denio  (N.  Y.),  lOG;  Newtonv.  Harris, 
Hale,  Id.  791.  This  question  of  rele-  2  Seld.  (N.  Y.)  345.] 
vancy  is  utterly  without  any  established 


CHAP,  m.]  EXAMIKATION   OF  WITNESSES.  613 

acter  of  the  witness  whom  they  are  called  upon  to  believe,  and  to 
know  whether,  although  he  has  not  been  convicted  of  any  crime, 
he  has  not  in  some  measure  rendered  himself  less  credible  by  his 
disgraceful  conduct.^  The  weight  of  this  argument  seems  to  have 
been  felt  by  the  judge  in  several  cases  in  which  questions,  tending 
trt  disgrace  the  witness,  have  been  permitted  in  cross-examination. 

§  456.  Same  subject.  It  is,  however,  generally  conceded,  that 
where  the  answer,  which  the  witness  may  give,  will  not  directly 
and  certainly  show  his  infamy,  but  will  only  tend  to  disgrace  him, 
he  may  be  compelled  to  answer.  Such  is  the  rule  in  equity,  as 
held  by  Lord  Eldon  ;  ^  and  its  principle  applies  with  equal  force 
at  common  law  ;  and,  accordingly,  it  has  been  recognized  in  the 
common-law  courts.^  In  questions  involving  a  criminal  offence, 
the  rule,  as  we  have  seen,*  is  different ;  the  witness  being  permit- 
ted to  judge  for  the  most  part  for  himself,  and  to  refuse  to  answer 
wherever  it  would  tend  to  subject  liim  to  a  criminal  punishment 
or  forfeiture.  But  here  the  court  must  see  for  itself,  that  the 
answer  will  directly  show  his  infamy,  before  it  will  excuse  him 
from  testifying  to  the  fact.^  Nor  does  there  seem  to  be  any  good 
reason  wh}'  a  witness  should  be  privileged  from  answering  a  ques- 
tion touching  his  present  situation,  employment,  and  associates, 
if  they  are  of  his  own  choice  ;  as,  for  example,  in  what  house  or 
family  he  resides,  what  is  his  ordinary  occupation,  and  whether 
he  is  intimately  acquainted  and  conversant  with  certain  persons, 
and  the  like  ;  for,  however  these  may  disgrace  him,  his  position 
is  one  of  his  own  selection.^ 

§  457.  Same  subject.  But,  on  the  other  hand,  where  the  ques- 
tion involves  the  fact  of  a  previous  conviction,  it  ought  not  to  be 

1  1  Stark.  Evid.  170.  [See  also  ante,  lier  to  punishment.  Cundell  v.  Pratt,  1 
§§  449,  450.]  M.  &  Malk.  108.     [A  mere  impertinent 

2  Parkhurst  v.  Lowten,  1  Meriv.  400;  inquiry,  calculated  and  intended  to  test 
8.0.  2  Swanst.  194,  216;  Foss  v.  Haynes,  the  witness's  power  of  self-control,  and, 
1  Redingt.  81.  And  see  Story,  Eq.  PI.  if  possible,  to  throw  him  off  his  guards 
§§  5^5i  596-  should  never  be  resorted  to  or  allowed, 

3  The  People  v.  Mather,  4  Wend.  232,  unless  there  has  been  something  very 
252,  254;  The  State  v.  Patterson,  2  Ired.  marked  in  the  conduct  of  the  witness  to 
346.  justify  it.     The  witness  is  not  obliged  to 

■•  Supra,  §  451.  submit  to  insult,  or  to  answer  inquiries 

5  Macbride  v.  Macbride,  4  Esp.  242,  merely  impertinent  Commonwealth  v. 
perLd.  Alvanley;  The  People  y.  Mather,  Sacket,  22  Pick.  394;  Same  v.  Shaw,  4 
4  Wend.  254,  per  Marcy,  J.  Cush.  593 ;  Smith  v.  Cutter,  1  Gray,  108. 

6  Thus,  when  a  witness  was  asked,  Greater  latitude  of  cross-examination  is 
whether  she  was  not  cohabiting  with  a  allowable  as  against  a  party  to  th.e  suit, 
particular  individual,  in  a  state  of  incest,  as  a  rule,  than  against  witnesses  merely. 
Best,  C.  J.,  prohibited  the  question;  stat-  Rea  v.  Missouri,  Int.  Rev.  Record,  March 
ing  expressly,  that  he  did  this  only  on  21,  1874.] 

the  ground  that  the  answer  would  expose 
VOL.  I.  33 


614 


LAW   OF  EVIDENCE. 


[PAUT  rrr. 


asked  ;  because  there  is  higher  and  better  evidence  which  ought 
to  be  offered.  If  the  inquiry  is  confined,  in  terms,  to  the  fact  of 
his  having  been  subjected  to  an  ignominious  punishment^  or  to  im- 
prisonment alone,  it  is  made,  not  for  the  purpose  of  showing  that 
he  was  an  innocent  sufferer,  but  that  he  was  guilty ;  and  the 
only  competent  proof  of  this  guilt  is  the  record  of  his  conviction. 
Proof  of  the  same  nature,  namely,  documentary  evidence,  may 
also  be  had  of  the  cause  of  his  commitment  to  prison,  whether  in 
execution  of  a  sentence,  or  on  a  preliminary  charge.^ 

§  458.  Facts  not  affecting  credibility.  There  is  another  class  of 
questions,  which  do  not  seem  to  come  within  the  reasons  already 
stated  in  favor  of  permitting  this  extent  of  cross-examination ; 
namely,  questions,  the  answers  to  which,  though  they  may  dis- 
grace the  witness  in  other  respects,  yet  will  not  affect  the  credit 
due  to  liis  testimony.  For  it  is  to  be  remembered,  that  the  ob- 
ject of  indulging  parties  in  this  latitude  of  inquiry  is,  that  the 
jury  may  understand  the  character  of  the  witness,  whom  they  are 
asked  to  believe,  in  order  that  his  evidence  may  not  pass  for  more 
than  it  is  worth.  Inquiries,  therefore,  having  no  tendency  to  this 
end,  are  clearly  impertinent.  Such  are  the  questions  frequently 
attempted  to  be  put  to  the  principal  female  witness,  in  trials  for 
seduction  per  quod  servitlum  aniisit,  and  on  indictments  for  rape, 
&c.,  whether  she  had  not  previously  been  criminal  with  other 
men,  or  with  some  particular  person,  which  are  generally  sup- 


1  The  People  v.  Herrick,  13  Johns.  84, 
per  Spencer,  J.;  Clement  v.  Brooks,  13 
N.  II.  92  [Xewcomb  r.  Griswold,  24  N.  Y. 
298].  In  Hex  v.  Lewis,  4  Esp.  225,  the 
prosecutor,  who  was  a  common  informer, 
was  asked  whether  he  had  not  been  in 
tlie  honse  of  correction  in  Sussex  ;  but 
Lord  Ellenboroui;;!!  interposed  and  sup- 
pressed tiie  question,  partly  on  tiie  old 
rule  of  rejecting  all  questions  tlie  object 
,of  wiiich  was  to  degrade  the  witness, 
but  cliiefly  because  of  the  injury  to  the 
administration  of  justice,  if  persons,  who 
came  to  do  their  duty  to  tiie  public, 
miglit  be  sulijected  to  improper  investi- 
gation. Inquiries  of  tiiis  nature  have 
often  been  refused  on  the  old  ground 
alone.  As  in  The  State  v.  Bailey, 
Pennington,  :}U4  (2d  ed.);  Millnian  v. 
Tucker,  2  I'eake's  Cas.  222 ;  Stout  v. 
Russell,  2  Yeates,  IW4.  A  witness  is  also 
privileged  from  answering  respecting  the 
commission  of  an  offence,  though  he 
has  received  a  pardon  ;  "  for,"  said 
North,  C.  J.,  "if  lie  hath  his  pardon,  it 


doth  take  away  as  well  all  calumny,  as 
liableness  to  punislimcnt,  and  sets  hira 
right  against  all  objection."  Hex  v. 
Reading,  7  Howell's  St.  Tr.  2'J(3.  It  may 
also  be  observed,  as  a  further  reason  for 
not  interrogating  a  witness  respecting 
his  conviction  and  pimisiiment  for  a 
crime,  tliat  he  may  not  understand  the 
legal  character  of  the  crime  tor  which  he 
was  punished,  and  so  may  admit  liimself 
guilty  of  an  ofTence  wliicli  he  never  com- 
mitted. In  Hex  V.  Edwards,  4  T.  H.  440, 
the  question  was  not  asked  of  a  witness, 
but  of  one  wlio  offered  liimself  as  bail 
for  another,  indicted  of  graiul  larceny. 
[In  People  v.  Manning,  48  Cal.  •mI-j,  a 
witness  was  asked,  on  cross-examin.ation, 
if  he  had  not  been  arrested  for  va- 
granc}-;  and  an  objection  that  it  was 
immaterial,  and  that  the  best  evidence 
was  the  record,  was  not  sustained,  on  the 
ground  that  an  arrest  does  not  necessarily 
imply  a  record.  But  wc  apprehend  that 
courts  generally  would  have  sustained 
the  objection  of  immateriality.) 


CHAP,  ni.] 


EXAMINATION   OF   WITNESSES. 


515 


pressed.!  So,  on  an  indictment  of  a  female  prisoner,  foi  stealing 
from  the  person,  in  a  house,  the  prosecutor  cannot  be  asked, 
whether  at  that  house  any  thing  improper  passed  between  him 
and  the  prisoner.^ 

§  459.  CoUateral  facts  affecting  credibUity.  But  where  the  ques- 
tion does  not  fall  within  either  of  the  classes  mentioned  in  the  three 
preceding  sections,  and  goes  clearly  to  the  credit  of  the  witness  for 
veracity,  it  is  not  easy  to  perceive  why  he  should  be  privileged 
from  answering,  notwithstanding  it  may  disgrace  him.  The  ex- 
amination being  governed  and  kept  within  bounds  by  the  discre- 
tion of  the  judge,  all  inquiries  into  transactions  of  a  remote  date 
will  of  course  be  suppressed ;  for  the  interests  of  justice  do  not 
require  that  the  errors  of  any  man's  life,  long  since  repented  of 
and  forgiven  by  the  community,  should  be  recalled  to  remem- 
brance, and  their  memory  be  perpetuated  in  judicial  documents, 
at  the  pleasure  of  any  future  litigant.  The  State  has  a  deep  interest 
in  the  inducements  to  reformation,  held  out  by  the  protecting  veil, 
which  is  thus  cast  over  the  past  offences  of  the  penitent.  But 
where  the  inquiry  relates  to  transactions  comparatively  recent, 
bearing  directly  upon  the  present  character  and  moral  principles 
of  the  witness,  and  therefore  essential  to  the  due  estimation  of 
his  testimony  by  the  jury,  learned  judges  have  of  late  been  dis- 
posed to  allow  it.3     Thus  it  has  been  held,  that  a  witness  called 


1  Dodd  V.  Norris,  3  Campb.  619 ;  Rex 
r.  Hodgdon,  Russ.  &  Ry.  211;  Vaughn 
V.  Perrine,  Penningt.  534.  [More  recent 
cases  have  allowed  such  questions  to  be 
put,  but  held  the  interrogator  bound  by 
the  answer.  Reg.  v.  Holmes,  1  L.  R.  C. 
C.  334,  affirming  Rex  v.  Hodgdon,  and 
overruling  Rex  v.  Robing,  2  M.  &  Rob. 
512  ;  Garbutt  v.  Simpson,  32  L.  J.  M.  C. 
186 ;  Goddard  v.  Parr,  24  L.  J.  Ch.  784.] 
But  wliere  the  prosecution  is  under  a 
bastardy  act,  the  issue  being  upon  the 
paternity  of  the  child,  this  inquiry  to  its 
mother,  if  restricted  to  the  proper  time, 
is  material,  and  she  will  be  held  to  an- 
swer. Swift's  E\id.  p.  81.  See  also 
Macbride  v.  Macbride,  4  Esp.  242 ;  Bate 
r.  Hill,  1  C.  &  P.  100.  In  Rex  v.  Teal 
et  al..,  11  East,  .307,  311,  which  was  an  in- 
dictment for  conspiring  falsely  to  charge 
one  with  being  the  father  of  a  bastard 
child,  similar  inquiries  were  permitted 
to  be  made  of  the  mother,  who  was  one 
of  the  conspirators,  but  was  admitted  a 
witness  for  the  prosecution.  [People  v. 
Blakeley,  4  Parker,  C.  R.  176.]  See  post, 
vol.  ii.  §  577.     [But  the  mere  fact  that 


tlie  complainant  rode  or  walked  with 
other  men  about  the  time  the  child  was 
begotten,  is  a  fact  too  remote  and  indefi- 
nite to  be  relied  upon  as  legal  proof. 
Eddy  V.  Gray,  4  Allen  (Mass.),  435; 
Maloney  v.  Piper,  105  Mass.  233.  Upon 
the  trial  of  an  indictment  for  rape,  it  is 
not  competent  for  the  defendant  to  show, 
either  by  cross-examination  or  by  other 
evidence,  that  she  has  declared  herself 
pregnant  by  other  men,  when  in  fact  she 
was  not  pregnant  at  all.  Com.  v.  Regan, 
105  Mass.  593.] 

2  Rex  V.  Pitcher,  1  C.  &  P.  85.  [This 
case,  Macbride  v.  Macbride,  supra,  and 
Rex  V.  Lewis,  supra,  are  said  not  to  be 
law  now  in  England,  by  Taylor,  Ev. 
§  1293,  n.  And  see  also  ante,  §§  450,  n., 
455,  n.] 

3  This  relaxation  of  the  old  rule  was 
recognized,  some  years  ago,  by  Lord 
Eldon.  "  It  used  to  be  said,"  he  ob- 
served, "  that  a  witness  could  not  be 
called  on  to  discredit  liimself ;  but  there 
seems  to  be  something  like  a  departure 
from  that;  I  mean,  that  in  modern  times, 
the  courts  have  permitted  questions  to 


616 


LAW   OF  EVIDENCE. 


[PAKT  in. 


by  one  party  maybe  asked,  in  cross-examination,  whether  he  had 
not  attempted  to  dissuade  a  witness  for  the  other  party  from  at. 
tending  the  trial.^  So  where  one  was  indicted  for  larceny,  and 
the  principal  witness  for  the  prosecution  was  his  servant-boy,  liie 
learned  judge  allowed  the  prisoner's  counsel  to  ask  the  boy, 
whether  he  had  not  been  charged  with  robbing  his  master,  and 
whether  he  had  not  afterwards  said  he  would  be  revenged  of  him, 
and  would  soon  fix  him  in  jail.^  Similar  inquiries  have  been  per- 
mitted in  other  cases.^  The  great  question,  however,  whether  a 
witness  may  not  be  bound  in  some  cases  to  answer  an  interroga- 
tory to  his  own  moral  degradation,  where,  though  it  is  collateral  to 
the  main  issue,  it  is  relevant  to  his  character  for  veracity,  has  not 
yet  been  brought  into  direct  and  solemn  judgment,  and  must 
therefore  be  regarded  as  an  open  question,  notwithstanding  the 
practice  of  eminent  judges  at  Nisi  Prius,  in  favor  of  the  inquiry, 
under  the  limitations  we  have  above  stated.* 

§  460.  Questions  may  be  asked  -where  "witness  need  not  aus'wer. 
Though  there  may  be  cases,  in  which  a  witness  is  not  bound  to 
answer  a  question  which  goes  directly  to  disgrace  him,  yet  the 
question  may  he  asked,  wherever  the  answer,  if  the  witness  should 
waive  his  privilege,  would  be  received  as  evidence.^  It  has  been 
said,  that  if  the  witness  declines  to  answer,  his  refusal  may  well 
be  urged  against  his  credit  with  the  jury.^     But  in  several  cases 


show,  from  transnctions  not  in  issue,  that 
the  witness  is  of  impeaclied  character, 
and  therefore  not  so  credible."  Park- 
hurst  V.  Lowten,  2  Swanst.  210. 

1  Harris  n.  Tippett,  2  Campb.  637. 

2  Kex  V.  Yewin,  cited  2  Campb.  Go8. 

8  Kex  V.  Watson,  2  Stark.  lUj,  149; 
Rex  V.  Teal  ft  al.,  11  East,  311  ;  Cundell 
V.  Pratt,  1  M.  &  Maik.  108;  Ilex  v.  Bar- 
nard, 1  C.  &  P.  85,  n.  (a);  Rex  v.  Gilroy, 
Id. ;  Frost  v.  Holloway,  cited  in  2  Phil. 
Evid.  425. 

•«  See  1  Stark.  Evid.  167-172;  2  Phil. 
Evid.  42.!-428  ;  Peake's  Evid.  b}-  Norris, 
pp.  20-J-204.  In  Hespublica  v.  Gibbs,  3 
Yeates,  421),  wliere  the  old  rule  of  exclud- 
ing the  inquiry  was  discussed  on  general 
grounds,  and  approve<l,  tiie  inquiry  was 
clearly  inadmissible  on  another  account, 
as  the  answer  woulil  go  to  a  forfeiture  of 
the  witness's  right  of  suffrage  and  of  citi- 
zenship. 

6  2  Phil.  Evid.  423-428  ;  1  Stark. 
Evid.  172;  Southard  v.  Hexf<)rd,6  Cowcn, 
254.  But  it  should  be  remembered,  that, 
if  the  question  is  collateral  to  the  issue, 


the  answer  cannot  be  contradicted.  In 
such  cases,  the  prudent  practitioner  will 
seldom  put  a  question,  unless  it  be  one 
which,  if  answered  either  way,  will  bene- 
fit his  client.  Such  was  the  question 
put  by  the  |)risoner's  counsel,  in  Kex  v. 
Pitcher,  supra,  §  4-58.  See  1  C.  &  P.  85. 
n.  (n).  [It  is  now  undoubted  law,  that 
a  witness,  although  not  always  bound  to 
answer,  may  be  asked  questions  tending 
to  criminate,  injure,  or  degrade  him. 
Best,  Ev.  §  546.  But  in  Com.  v.  McDon- 
ald, the  court  refused  to  allow  the  wit- 
ness—  the  prosecutrix  on  an  indictment 
for  rape  —  to  be  asked  if  she  had  not 
previously  sold  liquor  in  violation  of  law. 
Under  its  discretion  the  court  might 
refuse  to  allow  tlie  question,  though  it 
intimated  that,  if  tlie  question  had  been 
confined  to  the  time  when  the  alleged 
rape  was  committed,  it  would  have  been 
admissible.     110  Mass.  405.] 

6  1  Stark.  Evid.  172;  Rose  v.  Blake- 
more,  Ry.  &  M.  382,  per  Brougham, 
arg. 


CHAP,  m.]  EXA]MINATION   OF  WITNESSES.  517 

tliis  inference  has  been  repudiated  by  the  court ;  for  it  is  the  duty 
of  the  court,  as  well  as  the  objects  of  the  rule,  to  protect  the  wit- 
ness from  disgrace,  even  in  the  opinion  of  the  jury  and  other 
persons  present ;  and  there  would  be  an  end  of  this  protection,  if 
a  demurrer  to  the  question  were  to  be  taken  as  an  admission  of 
the  fact  inquired  iuto.^ 

§  461.  Impeachment  of  witnesses.  After  a  witness  has  been 
examined  in  chief,  his  credit  may  he  impeached  in  various  modes, 
besides  that  of  exhibiting  the  improbabilities  of  a  story  by  a 
cross-examination.  (1.)  By  disproving  the  facts  stated  by  him, 
by  the  testimony  of  other  witnesses.^  (2.)  By  general  evidence 
affecting  his  credit  for  veracity.  But  in  impeaching  the  credit  of 
a  witness,  the  examination  must  be  confined  to  his  general  repu- 
tation, and  not  be  permitted  as  to  particular  facts  ;  for  every 
man  is  supposed  to  be  capable  of  supporting  the  one,  but  it  is 
not  likely  that  he  should  be  prepared  to  answer  the  other,  with- 
out notice ;  and  unless  his  general  character  and  behavior  be  in 
issue,  he  has  no  notice.^  This  point  has  been  much  discussed, 
but  may  now  be  considered  at  rest.*  The  regular  mode  of  exam- 
ining into  the  general  reputation  is  to  inquire  of  the  witness 
whether  he  knows  the  general  reputation  of  the  person  in  ques- 
tion among  liis  neighbors  ;  and  what  that  reputation  is.^  In  the 
English  courts,  the  course  is  further  to  inquire  whether,  from 
such  knowledge,  the  witness  would  believe  that  person,  upon  his 
oath.^     In  the  American  courts,  the  same  course  has  been  pur- 

1  Rose  V.  Blakemore,  Ry.  &  M.  382,  3  Bull.  N.  P.  296,  297.  The  mischief 
per  Abbott,  Ld.  Ch.  J. ;  Re.x  v.  Watson,  of  raising  collateral  issues  is  also  ad- 
2  Stark.  i;58,  per  Holroyd,  J. ;  Lloyd  v.  verted  to  as  one  of  the  reasons  of  this 
Passinslmm,  16  Ves.  64;"  in/7ra,  §  451.  rule.     "Look  ye,"  said  Holt,  Ld.   C.  J., 

2  [Whether  a  witness,  who  has  sworn  "you  may  bring  witnesses  to  give  an 
falsely  as  to  one  material  fact,  is  to  be  account  of  the  general  tenor  of  the  wit- 
believed  as  to  other  facts,  is  a  question  ness's  conversation  ;  but  you  do  not  think, 
for  the  jury.  The  maxim,  /h/s»s  in  una,  sure,  that  we  will  try,  at  this  time, 
falsns  in  omnibus,  as  often  stated  by  the  whether  he  be  guilty  of  robbery."  Rex 
court,  is  merely  advisorv.  Lewis  v.  v.  Rookwood,  4  St.  Tr.  681;  s.  c.  18 
Hodgdon,  17  Mo.  267  ;  Blanchard  r.  Howell's  St.  Tr.  211 ;  1  Stark.  Evid.  182. 
Pratt,  37  111.  283 ;  Mead  v.  McGrow,  19  It  is  competent,  however,  for  the  party 
Ohio  St.  55;  Callahan  v.  Shaw,  24  Iowa,  against  whom  a  witness  has  been  called 
441 ;  Pawlette  v.  Brown,  40  Mo.  52  ;  to  show  that  he  has  been  bribed  to  give 
Knowles  r.  People,  15  Mich.  408.  It  is  his  evidence.  Attorney-General  y.  Hitch- 
not  a  rule  of  law  that  all  testimony  of  cock,  11  Jur.  478. 

such  a  witness  must  be  disregarded.     It  *  Layer's  case,  16  How.  St.  Tr.  246, 

may   be,  and  should  be,  regarded  with  286;  Swift's  Evid.  143. 

suspicion,   and    received   with    caution.  5  [in   Bates  v.  Barber,  4   Gush.  107, 

The  law  is  the  same  as  it  is  with  regard  108,  it  was  held,  that   the   preliminary 

to  accomplices.     See  ante,  §  380;  1  Tay-  question  as  to  the  knowledge  of  the  repu- 

lor  Ev.  §  171.    And  see  also  post,  vol.  iii.  tation  need  not,  and  should  not,  be  put.] 

§  378;  Com.  v.  Billings,  97  Mass.  405.]  «  Phil.  &  Am.  on  Evid.  £25;  Mawson 


518 


LAW   OF  EVIDENCE. 


[PAET  m. 


sued  ;  ^  but  its  propriety  has  of  late  been  questioned,  and  perhaps 
the  weight  of  authority  is  now  against  permitting  the  witness  to 
testify  as  to  his  own  opinion.^  In  answer  to  such  evidence,  the 
other  party  may  cross-examine  those  witnesses  as  to  their  means 
of  knowledge,  and  the  grounds  of  their  opinion  ;  or  may  attack 
their  general  character,  and  by  fresh  evidence  support  the  char- 
acter of  his  own  witness.^     The  inquiry  must  be  made  as  to  his 


V.  Hartsink,  4  Esp.  104,  per  Ld.  EUen- 
borougli;  1  Stark.  Evid.  182;  Carlos  v. 
Brook,  10  Ves.  50. 

1  The  People  v.  Mather,  4  Wend.  257, 
258;  The  State  v.  Boswell,  2  Dev.  209, 
211  ;  Anon.,  1  Hill  (S.  C),  258;  Ford  v. 
Ford,  7  Humph.  92. 

2  Gass  V.  Stinson,  2  Sumn.  610,  per 
Story,  J. ;  Wood  v.  Mann,  Id.  321 ;  Kim- 
mcl  V.  Kimmel,3  S.  &  R.  336-338;  Wike 
r.  Lightner,  11  S.  &  R.  198;  Swift's  Evid. 
143;  Phillips  v.  Kingfield,  1  Appleton, 
275.  In  this  last  case  the  subject  was 
ably  examined  by  Shepley,  J.,  who  ob- 
served :  "  The  opinions  of  a  witness  are 
not  legal  testimony,  except  in  special 
cases  ;  such,  for  example,  as  experts  in 
some  profession  or  art,  those  of  the  wit- 
nesses to  a  will,  and,  in  our  practice,  opin- 
ions on  the  value  of  property.  In  otlier 
cases,  the  witness  is  not  to  substitute  his 
opinion  for  that  of  the  jury  ;  nor  are  they 
to  rely  upon  any  such  opinion  instead  of 
exercising  their  own  judgment,  taking 
into  consideration  the  whole  testimony. 
When  they  have  the  testimony  that  the 
reputation  of  a  witness  is  good  or  bad  for 
truth,  connecting  it  with  his  manner  of 
testifying,  and  with  the  other  testimony 
in  the  case,  they  have  tlie  elements  from 
which  to  form  a  correct  conclusion, 
whether  any  and  what  credit  should  be 
given  to  his  testimony.  To  permit  the 
opinion  of  a  witness,  that  another  witness 
should  not  be  believed,  to  be  received  and 
acted  upon  by  a  jury,  is  to  allow  the 
prejudices,  passions,  and  feelings  of  that 
witness  to  form,  in  part  at  least,  the  ele- 
ments of  their  judgment.  To  authorize 
tiie  question  to  be  put,  whether  the  wit- 
ness woubl  believe  another  witness  on 
onth,  although  sustained  by  no  inconsid- 
erable weight  of  authority,  is  to  depart 
from  sound  principles  and  established 
rules  of  law,  respecting  the  kind  of  testi- 
mony to  be  ailinitted  for  the  consideration 
of  a  jury,  and  their  duties  in  deciding 
upon  it.  It  moreover  would  permit  the 
introduction  and  indulgence  in  courts  of 
justice  of  personal  and  party  hostilities, 
and  of  every  unworthy  motive  by  which 
mrm  can  be  actuated,  to  form  the  basis 
of  an  opinion  to  be  expressed  to  a  jury 


to  influence  their  decision."  1  Applet. 
379.  But  quaere,  whether  a  witness  to 
impeach  reputation  may  not  be  asked, 
in  cross-examination,  if  he  would  not 
believe  the  principal  witness  on  oath. 
[In  Hamilton  v.  Peoplp  (Sup.  Ct.  Mich. 
1875,  13  Am.  L.  Reg.  n.  s.  679),  it  is  said 
that  "  the  English  rule  was  never  seri- 
ously questioned  until  Mr.  Greenleaf's 
statement  .  .  .  that  the  American  au- 
thorities disfavored  it.  Of  the  cases  he 
refers  to,  not  one  contains  a  decision  on 
the  question,  and  only  one  contains  more 
than  a  passing  dictum,  not  in  any  way 
called  for.  Phillips  v.  Kingfield,  1  Ap- 
pleton, 375.  The  authorities  referred  to 
in  that  case  contained  no  such  decision, 
and  the  court  declared  the  question  not 
presented  by  the  record  for  decision. 
...  So  far  as  the  reports  show,  the 
American  decisions  are  decidedly  in 
favor  of  the  English  doctrine,  and  we 
have  not  found  any  considerable  con- 
flict." The  court  cites,  amongst  other 
cases.  People  v.  Davis,  21  Wend.  (N.  Y.) 
30');  Titus  v.  Ash,  4  Foster,  319  ;  Lyman 
V.  Philadelphia,  56  Penn.  St.  488 ;  Knight 
V.  Howe,  29  Md.  194  ;  People  i-.  Tyler, 
35  Cal.  553;  Eason  v.  Chapman,  21  111. 
35  ;  Wilson  v.  State,  3  Wis.  798  ;  Stokes 
V.  State,  18  Ga.  17;  McCutcheon  v.  Mc- 
Cutcheon,  9  Port.  (Ala.)  50;  Mobley  «. 
Hamit,  1  A.  K.  Marshall  (Ky.),  590; 
United  States  v.  Van  Sickle,  2  McLean 
(U.  S.  C.  Ct.),  219.  The  opinion  of  the 
credibility  of  a  witness  is  held  to  be 
admissible,  on  the  same  ground  that 
opinions  in  regard  to  sanity,  disposition, 
temper,  distances,  velocity,  &c.,  are  ad- 
missible.    Per  Campbell,  J.] 

3  2  Phil.  Evid.  432  ;  Mawson  v.  Hart- 
sink,  4  Esp.  104,  per  Ld.  Ellenborougli ;  1 
Stark.  Evid.  182.  It  is  not  usual  to  cross- 
examine  witnesses  to  character,  unless 
there  is  some  definite  charge  upon  which 
to  cross-examine  them.  Rex  v.  Hodgkiss, 
7  C.  &  P.  298.  Nor  can  such  witnesses  be 
contradicted  as  to  collateral  facts.  Lee's 
case,  2  Lewin,  Cr.  Cas.  151.  [Tiie  court 
may  exercise  its  discretion  in  limiting  tiie 
numberof  impeaching  witnesses, and  like- 
wise that  of  thcsupporting  witnesses  ;  ami 
the  proper  exercise  of  such  discretion  is 


CHAP,  m.] 


EXAMINATION  OF   WITNESSES. 


519 


general  reputation,  where  lie  is  best  known.  It  is  not  enough  that 
the  impeaching  witness  professes  merely  to  state  what  he  has 
heard  ''  others  say  ;  "  for  those  others  may  be  but  few.  He  must 
be  able  to  state  what  is  generally  said  of  the  person,  by  those 
among  whom  he  dwells,  or  with  w^hom  he  is  chiefly  conversant ; 
for  it  is  this  only  that  constitutes  his  general  reputation  or  char- 
aeter.i  And,  ordinarily,  the  witness  ought  himself  to  come  from 
the  neighborhood  of  the  person  whose  character  is  in  question. 
If  he  is  a  stranger,  sent  thither  by  the  adverse  party  to  learn  his 
character,  he  will  not  be  allowed  to  testify  as  to  the  result  of  his 
inquiries ;  but  otherwise,  the  court  will  not  undertake  to  deter- 
mine, by  a  preliminary  inquiry,  whether  the  impeaching  witness 
has  sufficient  knowledge  of  the  fact  to  enable  him  to  testify  ;  but 
will  leave  the  value  of  his  testimony  to  be  determined  by  the 
jury.2 


no  ground  of  error.  Bunnell  v.  Butler,  23 
Conn.  65.  In  the  Supreme  Judicial  Court 
of  Massachusetts,  the  court  at  Nisi  Prius 
has  in  some  cases  limited  the  number  to 
Jive  or  six  on  a  side,  giving  the  parties  no- 
tice beforehand  of  such  intended  limita- 
tion. In  Bunnell  v.  Butler,  ubi  supra,  the 
number  was  limited  to  six  on  each  side, 
the  court  previously  notifying  the  parties 
of  the  intended  limitation.] 

^  Boynton  v.  Kellogg,  -i  Mass.  129,  per 
Parsons,  C.  J. ;  Wike  v.  Lightner,  11  S.  «& 
R.  198-200;  Kimmel  v.  Kimmel,  3  S. 
&  R.  337,  338;  PhiUips  v.  Kingfield,  1 
Applet.  375.  The  impeaching  witness 
may  also  be  asked  to  name  the  persons 
whom  lie  has  heard  speak  against  the 
character  of  the  witness  impeached.  Bates 
V.  Barber,  4  Cush.  107.  [Or  if  the  repu- 
tation of  the  witness  impeached  relates 
wholly  or  in  part  to  his  want  of  punctual- 
ity in  paying  his  debts.  Pierce  v.  New- 
ton, 13  Gray,  528.  But  such  evidence 
should  commonly  be  restricted  to  the 
character  of  the  witness  for  truth.  Shaw 
V.  Emery,  42  Maine,  59 ;  Craig  v.  State, 
5  Ohio,  V.  s.  605 ;  State  v.  Sater,  8  Clarke, 
420.  In  some  of  the  States,  however,  such 
inquiries  take  a  wider  range.  Eason  y. 
Chapman,  21  III.  33 ;  Gilliam  v.  State,  1 
Head,  38.] 

2  Douglass  V.  Tousey,  2  Wend.  352; 
Bates  V.  Barber,  4  Cush.  107 ;  Sleeper  v. 
Van  Middleswortli,  4  Den.  431.  Whether 
this  inquiry  into  the  general  reputation 
or  character  of  the  witness  should  be  re- 
stricted to  his  reputation  for  truth  and 
veracity,  or  may  be  made  in  general  terms 
iuvolving  his  entire  moral  character  and 


estimation  in  society,  is  a  point  upon  wblch 
the  American  practice  is  not  uniform.  All 
are  agreed,  that  the  true  and  primary  in- 
quiry is  into  his  general  character  for  truth 
and  veracity,  and  to  this  point,  in  the 
Northern  States,  it  is  still  confined.  But 
in  several  of  the  other  States  greater  lati- 
tude is  allowed.  In  South  Carolina,  the 
true  mode  is  said  to  be,  first,  to  ask  what 
is  his  general  character,  and  if  this  is 
said  to  be  bad,  then  to  inquire  whether 
the  witness  would  believe  him  on  oath  ; 
leaving  the  party  wiio  adduced  him  to 
inquire  whether,  notwithstanding  his  bad 
character  in  other  respects,  he  has  not  pre- 
served his  character  for  truth.  Anon.,  1 
Hill  (S.  C),  251,  258,  2-59.  In  Kentuch/, 
the  same  general  range  of  inquiry  is 
permitted,  and  is  thus  defended  by  one 
of  the  learned  judges  :  "  Every  person 
conversant  with  human  nature  must  be 
sensible  of  the  kindred  nature  of  the  vices 
to  which  it  is  addicted.  So  true  is  this, 
that,  to  ascertain  the  e-xistence  of  one  vice, 
of  a  particular  character,  is  frequently  to 
prove  the  existence  of  more,  at  the  same 
time,  in  the  same  individual.  Add  to  this, 
that  persons  of  infamous  character  may, 
and  do  frequently  exist,  who  have  formed 
no  character  as  to  their  lack  of  truth  ;  and 
society  may  have  never  had  the  opportu- 
nity of  ascertaining  that  they  are  false  in 
their  words  or  oaths.  At  the  same  time, 
they  may  be  so  notoriously  guilty  of  act- 
ing falsehood,  in  frauds,  forgeries,  and 
other  crimes,  as  would  leave  no  doubt  of 
their  being  capable  of  speaking  and  swear- 
ing it,  especially  as  they  may  frequently 
depose  falsehood  with  greater  security 


020 


LAW   OF   EVIDENCE. 


[part  in. 


§  462.  Proof  of  contrary  statements.  (3.)  The  credit  of  a  wit- 
ness may  also  be  impeached  by  proof,  that  he  has  made  state- 
ments out  of  courts  contrary  to  what  he  has  testified  at  the  trial. 
But  it  is  only  in  such  matters  as  are  relevant  to  the  issue,  that 
the  witness  can  be  contradicted.  And  before  tliis  can  be  done, 
it  is  generally  held  necessary,  in  the  case  of  verbal  statements, 
first  to  ask  him  as  to  the  time,  place,  and  person  involved  in  the 
supposed  contradiction.  Itls  notr^nough  to~ask  him  the  geneial 
question,  whether  he  has  ever  said  so  and  so,  nor  whether  he  has 
always  told  the  same  story ;  because  it  may  frequently  happen, 
that,  upon  the  general  question,  he  may  not  remember  whether 
he  has  so  said ;  whereas,  when  his  attention  is  challenged  to  par- 
ticular circumstances  and  occasions,  he  may  recollect  and  explain 
what  he  has  formerly  said.^     This  course  of  proceeding  is  consid- 


against  detection,  than  practice  tliose  other 
vices.  In  such  cases,  and  with  such  cliar- 
acters,  ought  the  jury  to  be  precluded 
from  drawing  inferences  unfavorable  to 
their  truth  as  witnesses,  by  excluding 
tlieir  general  turpitude  1  By  the  charac- 
ter of  every  individual,  that  is,  by  the 
estimation  in  which  he  is  held  in  the  so- 
ciety or  neighborhood  where  he  is  conver- 
eant,  his  word  and  his  oath  are  estiuiated. 
If  that  is  free  from  imputation,  his  testi- 
mony weighs  well.  If  it  is  sullied,  in  the 
same  proportion  his  word  will  be  doubted. 
We  conceive  it  perfectly  safe,  and  most 
conducive  to  the  purposes  of  justice,  to 
trust  the  Jury  with  a  full  knowledge  of 
the  standing  of  a  witness,  into  whose  char- 
acter an  inquiry  is  made.  It  will  not 
thence  follow,  that  from  minor  vices  they 
will  draw  the  conclusion,  in  every  in- 
stance, that  his  oath  must  be  discredited, 
but  only  be  put  on  their  guard  to  scruti- 
nize his  statements  more  strictly  ;  while 
in  cases  of  vile  reputation,  in  other  re- 
spects, they  would  be  warranted  in  disbe- 
lieving him,  though  he  had  never  been 
called  so  often  to  the  book  as  to  fix  upon 
him  the  reputation  of  a  liar,  when  on 
oath."  Hume  v.  Scott,  3  A.  K.  Marsh. 
2(51,  202,  per  Mills,  J.  This  decision  has 
been  cited  and  approved  in  North  Carolina, 
where  a  similar  course  prevails.  The 
State  V.  Boswell,  2  Dev.  Law,  201), 
210.  See  also  The  People  v.  Mather,  4 
Wend.  257,  2.')8,  per  Marcy,  .J.  See  also 
8  Am.  Law  Jour.  n.  s.  151-102,  where  all 
the  cases  on  this  point  are  collected  and 
reviewed.  Whether  evi<lence  of  common 
prostitution  is  admissible  to  impeach  a 
female  witness,  qmere..  See  Common- 
wealth i:  Murphy,  14  Mass.  387,  2  Stark. 


Evid.  369,  n.  (1),  by  Metcalf,  that  it  is 
admissible;  Spears  v.  Forrest,  15  Vt. 
435,  that  it  is  not.  [And  Commonwealth 
V.  Churchill,  11  Met.  538,  that  it  is  not, 
thus  overruling  Commonwealth  v.  Mur- 
phy. Teege  v.  Huntington,  23  How.  2.] 
1  Angus  V.  Smith,  1  M.  &  Malk.  473, 
per  Tindal,  C.  J. ;  Crowley  i\  Page,  7  C. 
&  P.  789,  per  Parke,  B.;  Reg.  v.  Shel- 
lard,  9  C.  &  P.  277  ;  Reg.  v.  Holden,  8 
C.  &  P.  006 ;  Palmer  v.  Haight,  2  Barb. 
S.  C.  210.  In  The  Queen's  case,  this  sub- 
ject was  very  much  discussed,  and  the 
unanimous  opinion  of  the  learned  judges 
was  delivered  by  Abbott,  C.  J.,  in  these 
terms :  "  The  legitimate  object  of  the  pro- 
posed proof  is  to  discredit  the  witness. 
Now,  the  usual  practice  of  the  courts  be- 
low, and  a  practice  to  which  we  are  not 
aware  of  any  exception,  is  this  :  if  it  be 
intended  to  bring  the  credit  of  a  witness 
into  question  by  proof  of  any  thing  that 
he  may  have  said  or  declared,  touching 
the  cause,  the  witness  is  first  asked,  upon 
cross-examination,  whether  or  no  he  has 
said  or  declared  that  which  is  intended  to 
be  proved.  If  the  witness  admits  the 
words  or  declarations  imputed  t(j  him,  tiie 
proof  on  the  other  side  becomes  unneces- 
sary ;  and  the  witness  has  an  opportunity 
of  giving  such  reason,  explanation,  or  ex- 
culpation of  his  conduct,  if  any  there  may 
be, as  the  particular  circumstances  of  tiie 
transaction  may  happen  to  furnish  ;  and 
thus  the  whole  matter  is  brought  before 
the  court  at  once,  which,  in  our  o[)inion, 
is  the  most  convenient  course.  If  the 
witness  denies  the  words  or  declarations 
imputed  to  him,  the  adverse  party  has  an 
opportunity  afterwards  of  contenciiiig  that 
the  matter  of  the  speech  or  declaration  is 


CHAP.  in.J 


EXAMINATIOlSr  OF  WITNESSES. 


521 


ered  indispensable,  from  a  sense  of  justice  to  the  witness ;  for  as 
the  direct  tendency  of  the  evidence  is  to  impeach  his  veracity, 


sncli,  that  lie  is  not  to  be  bound  by  the 
answer  of  the  witness,  but  may  contradict 
and  falsify  it ;  and,  if  it  be  found  to  be 
sucli,  his  proof  in  contradiction  will  be 
received  at  the  proper  season.  If  the  wit- 
ness declinas  to  give  any  answer  to  the 
question  proposed  to  him,  by  reason  of 
the  tendencj^  thereof  to  criminate  himself, 
and  the  court  is  of  opinion  that  he  cannot 
be  compelled  to  answer,  the  adverse  party 
lias,  in  this  instance,  also,  his  subsequent 
opportunity  of  tendering  his  proof  of  the 
matter,  which  is  received,  if  by  law  it 
ought  to  be  received.  But  the  possibility 
that  the  witness  may  decline  to  answer 
the  question  affords  no  sufficient  reason 
for  not  giving  him  the  opportunity  of  an- 
swering, and  of  offering  such  explanatory 
or  exculpatory  matter  as  I  have  before 
alluded  to  ;  and  it  is,  in  our  opinion,  of 
great  importance  that  this  opportunity 
should  be  thus  afforded,  not  only  for  the 
purpose  already  mentioned,  but  because, 
ifnot  given  in  the  first  instance,  it  may 
be  wholly  lost ;  for  a  witness,  who  has  been 
examined,  and  has  no  reason  to  suppose 
that  his  further  attendance  is  requisite, 
often  departs  the  court,  and  may  not  be 
found  or  brought  back  until  the  trial  be  at 
an  end.  So  that,  if  evidence  of  this  sort 
could  be  adduced  on  the  sudden  and  by 
surprise,  without  any  previous  intimation 
to  the  witness  or  to  the  party  producing 
him,  great  injustice  might  be  done  ;  and, 
in  our  opinion,  not  unfrequently,  would 
be  done  both  to  the  witness  and  to  the 
party  ;  and  this  not  only  in  the  case  of  a 
witness  called  by  a  plaintitf  or  prosecutor, 
but  equally  so  in  the  case  of  a  witness 
called  by  a  defendant ;  and  one  of  the 
great  objects  of  the  course  of  proceeding, 
established  in  our  courts,  is  the  preven- 
tion of  surprise,  as  far  as  practicable,  upon 
any  person  who  may  appear  therein." 
The  Queen's  case,  2  Brod.  &  Bing.  313, 
314.  In  the  United  States,  the  same  course 
is  understood  to  be  generally  adopted 
[Conrad  v.  Griffey,  16  How.  (U.  S.)  38; 
Sprague  v.  Cadwell,  12  Barb.  516  ;  Unis  v. 
Chariton's  Adm'r,  12  Gratt.  484  ;  Wright 
V.  Uicks,  15  Geo.  IGO  ;  Carlisle  r.  Hunley, 
16  Ala.  622  ;  Powell  v.  State,  19  Id.  577 ; 
Drennen  v.  Lindsey,  15  Ark.  359 ;  Nelson 
V.  State,  2  Swan,  237 ;  Smith  v.  People,  2 
Mich.  415|  ;  except  in  Maine,  Ware  v. 
Ware,  8  Greenl.  42  ;  and  perhaps  in  Mas- 
sachusetts, Tucker  u.  Welsh,  17  Mass.  160. 
But  see  Brown  v.  Bellows,  4  Pick.  188. 
[In  Massachusetts,  the  rule  is  now  settled, 
that  the  witness  need  not  be  first  asked 


whether  he  has  ever  testified  differently. 
Gould  V.  Norfolk  Lead  Co.,  9  Cash.  338  ; 
Commonwealth  v.  Hawkins,  3  Gray,  468, 
404.  In  the  latter  case,  "  Bolles,  for  the 
defendant,  offered  the  depositions,  taken, 
before  the  coroner,  at  the  inquest  on  the 
body  of  Leet,  for  the  purpose  of  contra- 
dicting the  evidence  given  by  the  same 
witnesses  at  this  trial,  when  called  by  the 
Commonwealth.  The  Attorney-General 
objected,  on  the  ground  that  the  witnesses 
sought  to  be  impeached  had  not  been 
asked,  on  their  examination,  whether  they 
had  not  previously  made  different  state- 
ments, nor  had  their  attention  in  any  way 
been  called  to  their  depositions  before  the 
coroner.  But  the  court  were  of  opinion 
that,  for  the  purpose  of  impeaching  the 
witnesses,  such  parts  of  their  depositions 
were  admissible  as  were  contradictory  of 
the  evidence  given  by  them  at  the  trial; 
that  the  uniform  practice  in  this  Common- 
wealth, differing  in  this  respect  from  that 
of  Phigland,  and  some  of  the  other  States, 
had  been,  as  stated  in  Tucker  v.  Welsh, 
17  Mass.  160,  to  allow  the  introduction  of 
evidence  that  a  witness  had  previously 
made  different  statements,  without  first 
calling  his  attention  to  such  statements  ; 
that,  after  such  parts  had  been  read,  the 
Commonwealth  would  have  the  right  to 
require  the  whole  of  the  former  statement 
to  be  read,  and  might  recall  the  witness 
afterwards  to  explain  the  alleged  discre- 
pancy. Bolles  then  proposed  to  point  out 
to  the  jury  that  these  witnesses  had  omit- 
ted, in  their  testimony  before  the  coroner, 
material  facts  to  which  they  had  now  tes- 
tified, and  which,  he  argued,  were  so  im- 
portant that  they  could  not  have  been 
omitted  then,  and  remembered  now,  con- 
sistently with  the  ordinary  workings  of  a 
good  memory  and  a  good  conscience. 
But  tlie  court  ruled  that  those  parts  only 
of  the  testimony  before  the  coroner  could 
be  read,  for  the  purpose  of  impeaching  the 
character  of  the  witness,  which  went  to 
show  a  discrepancy  or  contradiction,  as 
by  showing  that  the  witness  had  given 
different  accounts  at  different  times,  by 
alleging  a  fact  at  one  time  which  he  de- 
nied at  another,  or  by  stating  :t  in  two 
ways  inconsistent  with  each  other ;  and 
that  the  mere  omission  to  state  a  fact,  or 
stating  it  less  fully  before  the  coroner,  was 
not  a  subject  for  comment  to  the  jury,  un- 
less the  attention  of  the  witness  was  par- 
ticularly called  to  it  at  the  inquest ;  "  and 
in  New  Hampshire,  Titus  v.  Ash,  4  Foster, 
319 ;  and  in  Connecticut,  Hedge  v.  Clapp; 


522 


LAW   OF  EVIDENCE. 


[part  ni. 


common  justice  requires  that,  by  first  calling  his  attention  to  the 
subject,  he  should  have  an  opportunity  to  recollect  the  facts,  and, 
if  necessary,  to  correct  the  statement  already  given,  as  well  as  by 
a  re-examination  to  explain  the  nature,  circumstances,  meaning, 
and  design  of  what  he  is  proved  elsewhere  to  have  said.^     And 


22  Conn.  622,  in  which  Tucker  v.  Welsh, 
17  Mass.  160,  is  cited  and  approved  ;  Rob- 
inson V.  Hutchinson,  31  Vt.  443.  The  rule 
requiring  the  witness  first  to  be  inquired 
of  as  to  his  having  made  such  contradic- 
tory statements  seems  not  to  obtain  with 
entire  approbation  in  some  of  the  States. 
Cook  V.  Brown.  34  N.  H.  460 ;  Rowland  v. 
Conway,  1  Abbott,  Adm.  281.  But  in 
others  it  is  rigidly  enforced.  Jarboe  v. 
Kepler,  8  Ind.  314 ;  Galena,  &c.  R.  R.  Co. 
V.  Fav,  16  III.  558  ;  State  v.  Davis,  29  Mo. 
391  ;  "^Ketchingman  v.  State,  6  Wis.  426. 
But  in  order  to  lay  the  foundation  for  in- 
quiring of  the  witness  as  to  what  he  may 
have  said  out  of  court,  he  must  first  be 
examined  as  to  the  facts  upon  that  point, 
in  order  to  make  tiie  inquiry  material. 
Combs  V.  Winchester,  39  N.  H.  13 ;  Bearss 
r.  Copley,  10  N.  Y.  App.  03.]  The  utility 
of  tliis  practice,  and  of  confronting  the 
two  opposing  witnesses,  is  illustrated  by 
a  case  mentioned  by  Mr.  Justice  Cowen, 
in  his  notes  to  Phillips  on  Evidence, 
vol.  ii.  p.  774  (n.  553  to  Phil.  Evid.  308) ; 
"  in  which  a  highly  respectable  witness, 
sought  to  be  impeached  through  an  out- 
of-door  conversation  by  another  witness, 
who  seemed  very  willing  to  bring  him 
into  a  contradiction,  upon  both  being 
placed  on  the  stand,  furnished  such  a  dis- 
tinction to  the  latter  as  corrected  his 
memory,  and  led  him,  in  half  a  minute, 
to  acknowledge  that  lie  was  wrong.  Tiie 
difference  lay  in  only  one  word.  The 
first  witness  iiad  now  sworn,  that  he  did 
not  rely  on  a  certain  firm  as  being  in  good 
credit ;  for  he  was  not  well  informed  on 
the  subject.  Tiie  former  words  imputed 
to  him  were  a  plain  admission  that  he  was 
fully  informed,  and  did  rely  ontheircrcdit. 
It  turned  out  tliat,  in  his  former  conversa- 
tion, lie  spoke  of  a  partnership,  from  which 
one  name  was  soon  afterward  withdrawn, 
leaving  him  now  to  sjieak  of  the  latter 
firm,  thus  weakened  by  tlie  withdrawal. 
In  regard  to  the  credit  of  the  first  firm,  he 
liad,  in  truth,  been  fully  informed  by  let- 
ters. With  respect  to  the  last,  he  had  no 
information.  The  sound  in  the  titles  of 
the  two  firms  was  so  nearly  alike,  that  the 
ear  would  easily  confound  them ;  and, 
had  it  not  been  for  the  colloquium  thus 
brought  on,  an  apparent  contradiction 
would  doubtless  have  been  kept  on  foot, 
for   various    purposes,   through   a   long 


trial.  It  involved  an  inquiry  into  a 
credit  which  had  been  given  to  another, 
on  the  fraudulent  representations  of  the 
defendant."  Mr.  Starkie,  for  a  different 
purpose,  mentions  another  case,  of  simi- 
lar character,  where  the  judge  understood 
the  witness  to  testify  that  the  prisoner, 
who  was  charged  with  forgery,  said,  "  I 
am  the  drawer,  acceptor,  and  indorser  of 
the  bill ;  "  whereas  the  words  were,  "  I 
know  the  drawer,  acceptor,  and  indorser 
of  the  bill."     1  Stark.  Evid.  484. 

1  Reg.  V.  St.  George,  9  C.  &  P.  483, 
489;  Carpenter  v,  Wahl,  11  Ad.  &  El. 
803.  On  this  subject,  the  following  ob- 
servations of  Lord  Langdale  deserve  great 
consideration :  "  I  do  not  think,"  said  he, 
"  that  the  veracity  or  eyen  the  accuracy 
of  an  ignorant  and  illiterate  person  is  to 
be  conclusively  tested  by  comparing  an 
affidavit  which  he  has  made,  with  his  tes- 
timony given  upon  an  oral  examination 
in  open  court.  We  have  too  much  expe- 
rience of  the  great  infirmity  of  affidavit 
evidence.  When  the  witness  is  illiterate 
and  ignorant,  the  language  presented  to 
the  court  is  not  his ;  it  is,  and  must  be, 
the  language  of  the  person  who  prepares 
the  affidavit ;  and  it  may  be,  and  too  often 
is,  the  expression  of  that  person's  erro- 
neous inference  as  to  the  meaning  of  the 
language  used  by  the  witness  himself; 
and  however  carefully  the  affidavit  may 
be  read  over  to  the  witness,  he  may  not 
understand  what  is  said  in  language  so 
different  from  that  which  he  is  accus- 
tomed to  use.  Having  expressed  his 
meaning  in  his  own  language,  and  finding 
it  translated  by  a  person  on  whom  he 
relies,  into  language  not  his  own,  and 
which  he  does  not  perfectly  understand, 
he  is  too  apt  to  acquiesce  ;  and  testimony 
not  intended  by  him  is  brought  before 
the  court  as  his.  Again,  evidence  taken 
on  affidavit,  being  taken  ex  jmrte,  is  al- 
most always  incomplete,  and  often  inac- 
curate, sometimes  from  partial  sugges- 
tions, and  sometimes  from  the  want  of 
suggestions  and  inquiries,  without  the  aid 
of  which  the  witness  may  be  unable  to 
recall  the  connected  collateral  circum- 
stances, necessary  for  the  correction  of 
the  first  suggestions  of  his  memory,  and 
for  his  accurate  recollection  of  all  that 
belongs  to  the  subject.  For  these  and 
other  reasons,  I  do  not  think  that  dis- 


CHAP,  ni.] 


EXAMINATION  OF   WITNESSES. 


523 


this  rule  is  extended,  not  only  to  contradictory  statements  by  the 
witness,  but  to  other  declarations,  and  to  acts  done  by  him, 
through  the  medium  of  verbal  communications  or  correspondence, 
which  are  offered  with  the  view  either  to  contradict  his  testimony 
in  chief,  or  to  prove  him  a  corrupt  v/itness  himself,  or  to  have 
been  guilty  of  attempting  to  corrupt  others.^ 
—  §  463.  Mode  of  impeachment  A  similar  principle  prevails  in 
cross-examining  a  witness  as  to  the  contents  of  a  letter^  or  other 
paper  written  by  liim.  The  counsel  will  not  be  permitted  to 
represent,  in  the  statement  of  a  question,  the  contents  of  a  letter, 
and  to  ask  the  witness  whether  he  wrote  a  letter  to  any  person 
with  such  contents,  or  contents  to  the  like  effect;  without  having 
first  shown  to  the  witness  the  letter,  and  having  asked  him  whether 
he  wrote  that  letter,  and  his  admitting  that  he  wrote  it.  For  the 
contents  of  every  written  paper,  according  to  the  ordinary  and 


crepancies  between  the  affidavit  and  the 
oral  testimony  of  a  witness  are  conclu- 
sive against  the  testimonj'  of  the  witness. 
It  is  further  to  be  observed,  that  witnesses, 
and  particularly  ignorant  and  illiterate 
witnesses,  must  always  be  liable  to  give 
imperfect  or  erroneous  evidence,  even 
when  orally  examined  in  open  court. 
The  novelty  of  the  situation,  the  agitation 
and  hurry  which  accompanies  it,  tiie  ca- 
jolery or  intimidation  to  which  the  wit- 
nesses maj-  be  subjected,  the  want  of 
questions  calculated  to  excite  those  recol- 
lections, which  might  clear  up  every  diffi- 
culty, and  the  confusion  occasioned  by 
cross-examination,  as  it  is  too  often  con- 
ducted, may  give  rise  to  important  errors 
and  omissions  ;  and  the  truth  is  to  be 
elicited,  not  by  giving  equal  weight  to 
every  word  the  witness  may  have  uttered, 
but  by  considering  all  the  words  with 
reference  to  the  particular  occasion  of 
saying  them,  and  to  the  personal  de- 
meanor and  deportment  of  the  witness 
during  the  examination.  All  the  discre- 
pancies which  occur,  and  all  that  the  wit- 
ness says  in  respect  of  them,  are  to  be 
carefully  attended  to ;  and  the  result,  ac- 
cording to  the  si>ecial  circumstances  of 
each  case,  may  be,  either  that  the  testi- 
mony must  be  altogether  rejected,  on  the 
ground  that  the  witness  has  said  that 
which  is  untrue,  either  wilfully  or  under 
self-delusion,  so  strong  as  to  invalidate 
all  that  he  has  said ;  or  else  the  result 
must  bo,  that  the  testimony  must,  as  to 
the  main  purpose,  be  admitted,  notwith- 
standing discrepancies  which  may  have 
arisen  from  innocent  mistake,  extending 


to  collateral  matters,  but  perhaps  not  af- 
fecting the  main  question  in  any  impor- 
tant degree."  See  Johnson  v.  Todd,  5 
Beav.  600-602.  See  McKinney  v.  Neil, 
1  McLean,  540 ;  Hazard  v.  N.  Y.  &  Provi- 
dence R.  R.,  2  R.  I.  62  [Mickey  v.  Bur- 
lington Ins.  Co.,  3-5  Iowa,  174.] 

1  See  2  Brod.  &  Bing.  300,  313;  1 
Mood.  &  Malk.  473.  If  the  witness  does 
not  recollect  the  conversation  imputed  to 
him,  it  may  be  proved  by  another  witness, 
provided  it  is  relevant  to  the  matter  in 
issue.  Crowley  v.  Page,  7  C.  &  P.  789, 
per  Parke,  B.  The  contrary  seems  to 
liave  been  ruled  some  j'ears  before,  in 
Pain  V.  Beeston,  1  M.  &  Rob.  20,  per  Tin- 
dal,  C.  J.  But  if  he  is  asked,  upon  cross- 
examination,  if  he  will  swear  that  he  has 
not  said  so  and  so,  and  he  answers  that 
he  will  not  swear  that  he  has  not,  the 
party  cannot  be  called  to  contradict  him. 
Long  V.  Hitchcock,  9  C.  &  P.  619;  supra, 
§  449.  If  he  denies  having  made  the  con- 
tradictory statements  inquired  of,  and  a 
witness  is  called  to  prove  that  he  did,  the 
particular  words  must  not  be  put,  but 
the  witness  must  be  required  to  relate 
what  passed.  Hallett  v.  Cousens,  2  M.  & 
Rob.  238.  This  contradiction  may  be 
made  out  by  a  series  of  documents.  Jack- 
son ('.  Thomason,  8  Jur.  n.  s.  134.  [Where 
a  witness  upon  a  second  trial  contradicts 
his  testimony  on  the  first,  he  may  give 
his  reasons  therefor.  State  v.  Reed,  62 
Maine,  129.  And,  when  acts  are  shown 
for  the  purpose  of  imputing  fraud  to  a 
witness,  he  may  explain  those  acts.  Jan- 
vrin  V.  Fogg,  49  N.  H.  310.] 


524  LAW  OF  EVIDENCE.  [PART  III. 

"well-established  rules  of  evidence,  are  to  be  proved  by  the  paper 
itself,  and  by  that  alone,  if  it  is  in  existence.^  But  it  is  not  re- 
quired that  the  whole  paper  should  be  shown  to  the  witness.  Two 
or  three  lines  only  of  a  letter  may  be  exhibited  to  him,  and  he  may 
be  asked,  whether  he  wrote  the  part  exhibited.  If  he  denies,  or 
does  not  admit,  that  he  wrote  that  part,  he  cannot  be  examined 
as  to  the  contents  of  such  letter,  for  the  reason  already  given ; 
nor  is  the  opposite  counsel  entitled,  in  that  case,  to  look  at  the 
paper.2  And  if  he  admits  the  letter  to  be  his  writing,  he  cannot 
be  asked  whether  statements,  such  as  the  counsel  may  suggest, 
are  contained  in  it,  but  the  whole  letter  itself  must  be  read,  as 
the  only  competent  evidence  of  that  fact.^  According  to  the 
ordinary  rule  of  proceeding  in  such  cases,  the  letter  is  to  be  read 
as  the  evidence  of  the  cross-examining  counsel,  in  his  turn,  when 
he  shall  have  opened  his  case.  But  if  he  suggests  to  the  court, 
that  he  wishes  to  have  the  letter  read  immediately,  in  order  to 
found  certain  questions  upon  its  contents,  after  they  shall  have 
been  made  known  to  the  court,  which  otherwise  could  not  well 
or  effectually  be  done,  that  becomes  an  excepted  case  ;  and  for 
the  convenient  administration  of  justice,  the  letter  is  permitted 
to  be  read,  as  part  of  the  evidence  of  the  counsel  so  proposing  it, 
subject  to  all  the  consequences  of  its  being  considered.^ 

§  464.  Same  subject.  If  the  paper  in  question  is  lost,  it  is 
obvious  that  the  coiu'se  of  examination,  just  stated,  cannot  be 
adopted.  In  such  case,  it  would  seem,  that  regularly  the  proof 
of  the  loss  of  the  paper  should  first  be  oifered,  and  that  then  the 

1  The  Queen's  case,  2  Brod.  &  Bing.  himself  to  which  the  letter  of  the  witness 

286;  supra,  §§  87,  88;  Bellinger  i\  The  is  a  reply.     Trisehet  v.  Hamilton  Insur- 

reople,  8  Wend.  595,  598;  Kex  v.  Ed-  ance  Co.,   14   Gray,  456.     The   English 

wards,  8  C.  &  P.  26  ;  Reg.  v.  Taylor,  Id.  courts  hold  tliat  it  is  competent  to  cro.'ss- 

726.     If  the  paper  is  not  to  be  had,  a  cer-  examine  the  party,  when  offered  to  sup- 

tified  copy  may  be  used.     Reg.  v.  Shel-  port  his  own  case,  as  to  the  contents  of 

lard,  9  C.  &  P.  277.     So,  where  a  certified  an  affidavit  or  letter  not  produced.   Slad- 

copy  is  in  the  case  for  other  purposes,  it  den  v.  Sergeant,  1  F.  &  F.  322  ;  Farrow 

may  be  used  for  this  also.     Daviesr.  Da-  i-.   Bloomfield,    Id.   653.     So,   too,  as  to 

vies,  9  C.  &  P.  253.     But  the  witness,  on  whether  he  had  read  a  letter  of  a  certain 

his  own  letter  being  shown  to  him,  can-  date,  and  in  certain  terms.     Irclnnd   v. 

not  be   asked   whether  he    wrote    it   in  Stiff,  Id.  340.     So,  also,  as  to  the  rules  of 

answer  to  a  letter  to  him  of  a  certain  a  society  to  which  the  party  belonged. 

tenor  or   import,  such   letter  not  being  Minns  v.  Smith,  Id.  318.     This  rule,  laid 

produced.     See  McDonnell  i?.  Evans,  16  down  in  The  Queen's  case,  «"/)?•«,  has  been 

Jur.  103,  where  the  rule  in  question  is  reversed  bj'  the  Common-Law  Procedure 

fully  discussed.     (Stamper  v.  Griffin,  12  Act,  17   &   18  Vict.  c.    125,  §§  24,  103, 

Geo.  450.     If  a  party,  for  the  purpose  of  and  28  &  29  Vict.  c.  18,  §§  1,  5.] 
discrediting  a  witness,  by  showing  a  bias,  ^  Reg.  i'.  Duncombe,  8  C.  &  P.  369. 

offers  in  evidence  a  letter  from  the  wit-  ^  jbid. ;  2  Brod.  &  Bing.  288. 

ness  to  himself,  he  may  also,  for  the  pur-         *  The  Queen's  case,  2  Brod.  &  Bing 

pose  of  explaining  it,  read  a  letter  from  289,  290. 


CHAP.  111.]  EXAMINATION  OF   WITNESSES.  525 

witness  may  be  cross-examined  as  to  its  contents ;  after  which  he 
may  be  contradicted  by  secondary  evidence  of  the  contents  of  the 
paper.  But  where  this  course  would  be  likely  to  occasion  incon- 
venience, by  disturbing  the  regular  progress  of  the  cause,  and 
distracting  the  attention,  it  will  always  be  in  the  power  of  the 
judge,  in  his  discretion,  to  prevent  this  inconvenience,  by  post- 
poning the  examination,  as  to  this  point,  to  some  other  stage  of 
the  cause.^ 

§  465.  Same  subject.  A  witness  cannot  be  asked  on  cross-ex- 
amination, whether  he  has  written  such  a  thing,  stating  its  particu- 
lar nature  or  purport ;  the  proper  course  being  to  put  the  writing 
into  liis  hands,  and  to  ask  him  whether  it  is  his  writing.  And  if 
he  is  asked  generally,  whether  he  has  made  representations,  of 
the  particular  nature  stated  to  him,  the  counsel  will  be  required 
to  specify,  whether  the  question  refers  to  representations  in  writ- 
ing, or  in  words  alone  ;  and  if  the  former  is  meant,  the  inquiry, 
for  the  reasons  before  mentioned,  will  be  suppressed,  unless  the 
writing  is  produced.^  But  whether  the  witness  may  be  asked 
the  general  question,  whether  he  has  given  any  account,  by  letter 
or  otherwise,  differing  from  his  present  statement,  —  the  question 
being  proposed  without  any  reference  to  the  circumstance,  whether 
the  writing,  if  there  be  any,  is  or  is  not  in  existence,  or  whether 
it  has  or  has  not  been  seen  by  the  cross-examining  counsel,  —  is  a 
point  which  is  considered  still  open  for  discussion.  But  so  broad 
a  question,  it  is  conceived,  can  be  of  very  little  use,  except  to 
test  the  strength  of  the  witness's  memory,  or  his  confidence  in 
assertion ;  and,  as  such,  it  may  well  be  suifered  to  remain  with 
other  questions  of  that  class,  subject  to  the  discretion  of  the 
judge.3 

§  466.  Same  subject.  If  the  memory  of  the  witness  is  refreshed 
hy  a  paper  put  into  his  hands,  the  adverse  party  may  cross-exam- 
ine the  witness  upon  that  paper,  without  making  it  his  evidence 
in  the  cause.  But  if  it  be  a  book  of  entries,  he  cannot  cross-ex- 
amine as  to  other  entries  in  the  book  without  making  them  his 

1  See  McDonnell  v.  Evans,  16  Jur.  party  may  object  to  improper  inquiry, 
103;  11  Com.  B.  930.  although  the  witness  do  not.     Newcomb 

2  The  Queen's  case,  2  Brod.  &  Bing.  v.  Griswold,  24  N.  Y.  298.  And  if  one 
292-294.  party  cross-examine  a  witness  as  to  cer- 

3  This  question  is  raised  and  acutely  tain  passages  in  a  letter,  the  other  may 
treated  in  Phil.  &  Am.  on  Evid.  932-938.  insist  upon  having  the  whole  letter  read 
See  also  Reg.  v.  Shellard,  9  C.  &  P.  277  ;  Smith  v.  Prickett,  7  Jur.  n.  s.  610.1 
Reg.  V.  Holden,  8   C.  &  P.  606.     [The 


526  LAW  OF  EVIDENCE.  [PAET  Id. 

evidence.^  But  if  the  paper  is  shown  to  the  witness  merely  to 
prove  the  handwriting,  this  alone  does  not  give  the  opposite  party 
a  right  to  inspect  it,  or  to  cross-examine  as  to  its  contents.^  And 
if  the  paper  is  shown  to  the  witness  upon  his  cross-examination, 
and  he  is  cross-examined  upon  it,  the  party  will  not  be  bound  to 
have  the  paper  read,  until  he  has  entered  upon  his  own  case.^ 

§  40 7.  Re-examination.  After  a  witness  has  been  cross-exam- 
ined respecting  a  former  statement  made  by  him,  the  party  who 
called  him  has  a  right  to  re-examine  him  to  the  same  matter.* 
The  counsel  has  a  right,  upon  such  re-examination,  to  ask  all 
questions  which  may  be  proper  to  draw  forth  an  explanation  of 
the  sense  and  meaning  of  the  expressions,  used  by  the  witness  on 
cross-examination,  if  they  be  in  themselves  doubtful ;  and  also  of 
the  motive  by  which  the  witness  was  induced  to  use  those  ex- 
pressions ;  but  he  has  no  right  to  go  further  and  to  introduce 
matter  new  in  itself,  and  not  suited  to  the  purpose  of  explaining 
either  the  expressions  or  the  motives  of  the  witness.^  This  point, 
after  having  been  much  discussed  in  The  Queen's  case,  was  brought 
before  the  court  several  years  afterwards,  w)ien  the  learned 
judges  held  it  as  settled,  that  proof  of  a  detached  statement,  made 
by  a  witness  at  a  former  time,  does  not  authorize  proof,  by  the 
party  calling  that  witness,  of  all  that  he  said  at  the  same  time, 
but  only  of  so  much  as  can  be  in  some  way  connected  with  the 
statement  proved.^  Therefore,  where  a  witness  had  been  cross- 
examined  as  to  what  the  plaintiff  said  in  a  particular  conversation, 
it  was  held  that  he  could  not  be  re-examined  as  to  the  other  asser- 
tions, made  by  the  plaintiff  in  the  same  conversation,  but  not 
connected  with  the  assertions  to  which  the  cross-examination 
related ;  although  the  assertions  as  to  wliich  it  was  proposed  to 

1  Gregory  v.  Tavemor,  6  C.  &  P.  280 ;  in  the  House  of  Lords,  in  The  Queen's 
supra,  §  437,  n.  And  see  Stephens  v.  case,  as  dehvered  by  Lord  Tcnterden,  2 
Foster,  0  C.  &  P.  28'J.  Brod.  &  Bing.  207.     The  counsel  calling 

2  Russell  V  Rider,  6  C.  &  P.  416 ;  Sin-  a  witness  wlio  gives  adverse  testimony, 
clair  V.  Stevenson,  1  C.  &  P.  582  ;  s.  c.  cannot,inre-exaniination,  ask  the  witness 
2  Bing.  514  ;  su/mi,  §  437,  n.  whether  he  has  not  given  a  different  ac- 

3  Holland  y.  Reeves,  7  C.  &  P.  36.  count  of  the  matter  to  the  attorney.    VVin- 

*  In  the  examination  of  witnesses  in  ter  v.  Butt,  2  M.  &  Rob.  357.  Sec  su/mi, 
chancery,  under  a  commission  to  take  de-  §  444.  See  also  Holdsworth  v.  Mayor  of 
positions,  the  plaintiff  is  not  allowed  to  Dartmouth,  Id.  153.  But  lie  may  ask 
re-examine,  unless  upon  a  special  case,  the  question  upon  his  examination  in 
and  then  only  as  to  matters  not  com-  chief.  Wright  v.  Beckett,  1  M.  &  Rob- 
prised  in  the  former  interrogatories.  King  414;  Dunn  v.  Aslett,  2  M.  &  Rob. 
of  Hanover  v.  Wlieatley,  4  Beav.  78.  122. 

*  Such  was  the  opinion  of  seven  out  <>  Prince  v.  Samo,  7  Ad.  &  El.  627 
of  eight  judges,  whose  opinion  was  taken 


CHAP,  in.] 


EXAMINATION  OF  WITNESSES. 


527 


re-examine  him  were  connected  with  the  subject-matter  of  the 
suit.^ 

§  468.  Extent  of  right.  If  the  counsel  chooses  to  cross-examine 
the  witness  to  facts,  which  ivere  not  admissible  in  evidence,  the  other 
party  has  a  right  to  re-examine  him  as  to  the  evidence  so  given. 
Thus,  where  issue  was  joined  upon  a  plea  of  prescription,  to  a 
declaration  for  trespass  m  G.,  and  the  plaintiff's  witnesses  were 
asked,  in  cross-examination,  questions  respecting  tlie  user  in 
other  places  than  G.,  which  they  proved ;  it  was  held  that  the 
plaintiff,  in  re-examination,  might  show  an  interruption  in  the 
user  in  such  other  places.^  But  an  adverse  witness  will  not  be 
permitted  to  obtrude  such  irrelevant  matter,  in  answer  to  a  ques- 
tion not  relating  to  it ;  and  if  he  should,  the  other  party  may 
either  cross-examine  to  it,  or  may  apply  to  have  it  stricken  out 
of  the  judge's  notes.^ 

§  469.  Contradictory  statements.  Where  evidence  of  contra- 
dictory statements  by  a  witness,  or  of  other  particular  facts,  as, 
for  example,  that  he  has  been  committed  to  the  house  of  cor- 
rection, is  offered  by  way  of  impeaching  his  veracity,  his  general 
character  for  truth  being  thus  in  some  sort  put  in  issue,  it  has 
been  deemed  reasonable  to  admit  general  evidence,  that  he  is  a 
man  of  strict  integrity,  and  scrupulous  regard  for  truth.*     But 


1  Prince  v.  Samo,  7  Ad.  &  El.  627.  In 
this  case,  the  opinion  of  Lord  Tenterden, 
in  The  Queen's  case,  2  Brod.  &  Bing.  298, 
quoted  in  1  Stark.  Evid.  180,  that  evi- 
dence of  tlie  wliole  conversation,  if  con- 
nected with  the  suit,  was  admissible, 
though  it  were  of  matters  not  touched  in 
the  cross-examination,  was  considered, 
and  overruled.  [Dutton  v.  Woodman,  9 
Cush.  255.] 

2  Blewctt  V.  Tregonning,  3  Ad.  &  El. 
554.  [In  New  Hampshire,  if  one  party 
puts  in  irrelevant  evidence,  the  other 
party  may  reply  to  it.  Furbush  v.  Good- 
win, 5  Fost.  425.  But  the  general  rule 
is  otherwise.  Mitchell  v.  Sellman,  5  Md. 
376;  Shedden  v.  Patrick,  2  Sw.  &  Tr.  170.] 

3  Id.  554,  5G5,  581,  584. 

*  Phil.  &  Am.  on  Evid.  944 ;  Rex  v. 
Clarke,  2  Stark.  241.  And  see  supra, 
§§  54,  55  ;  Paine  v.  Tilden,  5  Washb.  554; 
Hadjo  V.  Gooden,  13  Ala.  718 ;  Sweet  v. 
Sherman,  6  Washb.  23  [State  v.  Cherry, 
63  N.  C.  493;  Isler  v.  Dewey,  71  N.  C. 
14.  Where  a  witness  admitted,  on  cross- 
examination, that  he  had  been  prosecuted, 
but  not  tried,  for  perjury,  the  party  call- 
ing him  was  not  permitted  to  give  evi- 


dence of  his  general  good  character.  Peo- 
ple V.  Gay,  1  Parker,  C.  R.  308 ;  s.  c.  3 
Seld.  378;  Wertz  v.  May,  21  Penn.  St. 
274.  See  Harrington  v.  Lincoln,  4  Gray, 
663,  665-567.  In  this  case,  a  witness 
was  asked  in  cross-examination,  for  the 
avowed  purpose  of  discrediting  him, 
whether  he  had  not  been  indicted  and 
tried  for  setting  fire  to  his  barn,  and  he 
answered  in  the  affirmative,  and  also 
stated  that  he  was  acquitted  on  the  trial 
of  the  indictment.  In  reply  to  this 
cross-examination,  and  to  support  the 
credit  of  the  witness,  the  party  calling 
liim  offered  evidence  as  to  his  reputation 
for  truth  and  veracity,  which  was  ad- 
mitted under  objection.  The  full  court 
decided  that  the  testimony  should  not 
have  been  admitted.  Thomas,  J.,  in 
delivering  the  opinion  of  the  court,  said : 
"If  the  cross-examination  of  the  witness 
showed  that  he  had  been  charged  with 
the  commission  of  crime,  it  showed  also 
that  upon  fair  trial  he  had  been  fully 
acquitted.  It  left  his  character  as  it 
found  it.  We  think,  tliercfore,  the  evi- 
dence as  to  his  reputation  for  truth  and 
integrity  should  not  have  been  admitted. 


528 


LAW  OF  EVIDENCE. 


[PAET  m. 


evidence,  that  he  has  on  other  occasions  made  statements,  similar 
to  what  he  has  testified  in  the  cause,  is  not  admissible ;  ^  unless 
where  a  design  to  misrepresent  is  charged  upon  the  witness,  in 
consequence  of  his  relation  to  the  party,  or  to  the  cause  ;  in 
which  case,  it  seems,  it  may  be  proper  to  show  that  he  made  a 


Had  the  effect  of  the  cross-examination 
been  otherwise,  we  are  not  prepared  to 
say  the  reputation  of  the  witness  for  truth 
woukl  liave  been  put  in  issue.  Tlie  doc- 
trine stated  in  the  text-books  has  but 
slight  foundation  of  authority  to  rest 
upon,  and  as  matter  of  reason  will  not 
bear  a  very  careful  probing.  The  case, 
however,  does  not  render  a  decision  of 
the  point  necessary."  See  also  Hey  wood 
V.  Eeed,  4  Gray,  574.  If  evidence  be 
introduced  tending  to  show  that  a  wit- 
ness has  been  suborned,  this  may  be 
rebutted  by  evidence  of  his  good  charac- 
ter. People  V.  Ah  Fat,  48  Cal.  41.  But 
see  Hey  wood  v.  Reed,  7  Gray  (Mass.), 
674.  Proof,  on  cross-examination,  that  a 
witness  was  drunk  at  other  times  tlian 
when  the  facts  to  which  he  testifies  tran- 
spired, will  not  authorize  testimony  of  his 
good  reputation  for  sobriety,  in  rebuttal. 
McCarty  v.  heavy,  118  Mass.  509.  It  is 
admissible  to  ask  a  witness  if  he  has  not 
said  that  he  had  testified  for  the  defend- 
ant, but  if  called  again,  he  thought  he 
should  testif}'  for  the  plaintiff,  and  if  he 
does  not  recollect  making  such  a  state- 
ment to  prove  that  he  did  so.  Chapman 
I'.  Coffin,  14  Gray,  454.  "  And  it  seems," 
says  Judge  Kedfield,  in  his  note  to  this 
section,  "  that  the  mere  attempt  to  im- 
peach a  witness,  by  inquiring  of  another, 
witness  what  was  his  character  for  trutii, 
will  justify  general  evidence  of  his  good 
character,  notwithstanding  the  witness 
in<iuired  of  said  his  character  was  good. 
Commonwealth  v.  Ingraham,  7  Gray,  46. 
But  in  Brown  v.  Mooers,  (i  Gray,  451,  it 
was  held,  that  where  the  character  of  the 
witness  is  only  attempted  to  be  ini- 
pcaclied  by  proving  contradictory  state- 
ments made  by  him  out  of  court,  lie 
could  not  be  sustained  by  general  evi- 
dence of  good  character ;  and  the  court 
declare  that  the  text  in  the  preceding 
section  of  our  author  '  is  )i»t  law.'  .  .  . 
Tiie  case  of  Brown  r.  Mooers  is  certainly 
too  narrow  in  its  restrictions.  For  if  the 
witness  is  clearly  shown  to  have  made 
contradictory  statements  about  the  mat- 
ter, he  is  surely  far  more  effectually 
impeached  than  if  a  witness  were  asked 
for  his  character  for  truth,  and  declared 
it  to  be  good.  In  the  latter  case,  it  would 
seem  no  ground  had  been  laid  for  the 
introduction  of  general  evidence  of  good 


character,  more  than  if  the  counsel  had 
inquired  of  the  witness  himself  if  he  had 
ever  been  impeached  in  court,  and  he 
had  replied  in  the  negative.  But  in  the 
former  case,  it  is  obvious  the  witness's 
character  for  truth  is  seriously  damaged. 
In  other  States,  general  evidence  of  good 
character  is  received ;  and  we  must  still 
maintain  that  our  author  is  fairly  war- 
ranted in  saying  that  it  should  be.  State 
V.  Rowe,  12  Vt.  93  ;  and  cases  cited  be- 
fore in  this  note  "]. 

1  Bull.  N.  P.  294  [People  v.  Doyell,  48 
Cal.  85 ;  Rob  ;;.  Hackley,  23  Wend.  50 ; 
Conrad  v.  Griffey,  11  How.  (U.  8.)  491  ; 
Craig  V.  Craig,  5  Rawle  (Pa.),  91,  over- 
ruling Henderson  v.  Jones,  Infra;  Smith 
V.  Stickney,  17  Barb.  (N.  Y.)"  489.  See 
also  Smith  v.  Morgan,  38  Maine,  468.  Tlie 
cases  of  Cook  v.  Curtis,  0  H.  &  J.  (Md.)  98, 
McAleer  v.  Horsley,  35  Md.  439,  Hender- 
son V.  Jones,  10  S.  &  R.  (Pa.)  332,  Coffin 
I'.  Anderson,  4  Black.  (Ind.)  398,  to  the 
contrary,  seem  to  have  been  founded 
directly  or  indirectly  on  the  case  of  Lut- 
trell  V.  Regnell,  1  Mod.  282,  which  long 
ago  ceased  to  be  authority  in  England. 
Rex  ;;.  Parker,  3  Doug.  242.  In  Maitland 
V.  Cit.  Nat.  Bank,  40  Md.  .540,  the  court 
refuse  to  go  any  farther  than  required 
by  the  exact  facts  of  the  prior  cases  in 
that  State.  Nor  can  an  admission  be 
rebutted  by  evidence  of  contrary  state- 
ments. Ante,  §  209,  n.  In  Deshon  v. 
Merchants'  Ins.  Co.,  11  Met.  199,  209,  it 
was  laid  down  as  a  clear  rule  of  law 
that  a  witness  cannot  be  allowed  to 
state,  on  the  direct  examination,  with 
the  view  of  strengthening  his  testi- 
mony, that  he  communicated  to  third 
persons,  at  prior  times,  the  same  or  other 
particular  facts.  In  Commonwealth  l-. 
Wilson,  1  Gray,  340,  where,  in  re-exam- 
ination, similar  testimony  was  offered  for 
a  like  purpose,  Shaw,  C.  J.,  said,  "The 
rule  excluding  such  testimony  is  confineil 
to  the  examination  in  chief,  and  does  not 
apply  to  a  case  wiiere  the  other  party  has 
sought  to  impeach  the  witness  on  cross- 
examination.  The  purpose  of  the  cross- 
examination  in  this  particular  having 
been  to  imj)cach  the  witness,  the  ques- 
tion may  be  put."  See  also  Boston  & 
Wore.  li.  R.  Co.  V.  Dana,  1  Gray,  88, 
1031. 


CHAP,  ni.] 


EXAlVnKATION   OF   AYITNESSES. 


529 


similar  statement  before  that  relation  existed.^  So,  if  the  char- 
acter of  a  deceased  attesting  witness  to  a  deed  or  will  is  impeached 
on  the  ground  of  fraud,  evidence  of  his  general  good  character  is 
admissible.^  But  mere  contradiction  among  witnesses  examined 
in  court  supplies  no  ground  for  admitting  general  evidence  as  to 
character.^ 


1  2  Phil.  Evid.  445,  446  [Hotclikiss 
V.  Ger.  Ins.  Co.,  5  Hun  (N.  Y.),  101; 
State  V.  Tliomason,  1  Jones  (N.  C),  L. 
274;  People  v.  Doyell.  48  Cal.  85.  In 
prosecution  for  rape,  if  the  prosecutrix, 
having  been  admitted  to  testify  that  she 
made  complaint  immediately  after  the 
fact,  is  impeached  as  to  the  fact  of  this 
complaint,  she  may  be  supported  by  prov- 
ing that  she  has  out  of  court  narrated  the 
facts  as  testified  to  bj'  her  at  the  trial. 
Thompson  v.  State,  38  Ind.  39.  If  fraud 
or  improper  conduct  be  imputed,  the 
supporting  evidence  will  be  admitted. 
Annesly  v.  Anglesea,  17  How.  St.  Tr. 
1348]. 

3  Doe  V.  Stephenson,  3  Esp.  284;  s.  c. 
4  Esp.  50,  cited  and  approved  b}'  Ld.  El- 
lenborough,  in  The  Bishop  of  Durham  v. 
Beaumont,  1  Campb.  207-210,  and  in  Pro- 
vis  V.  Reed,  5  Bing.  135. 

*  Bishop  of  Durham  v.  Beaumont,  1 
Campb.  207;  1  Stark.  Evid.  186;  Russell 
V.  Coffin,  8  Pick.  143,  154;  Starks  v.  The 
People,  5  Denio,  106.  [There  is  consid- 
erable conflict  in  the  decisions,  in  regard 
to  the  order  of  proof,  and  the  course  of 
trial,  in  the  different  States.  In  some  of 
the  States,  the  party  is  only  required  to 
make  a  prima  facie  case  in  the  opening, 
and  may  reserve  confirmatory  proof  in 


support  of  the  very  points  made  in  the 
opening,  till  he  finds  upon  what  points 
his  opening  case  is  attacked,  and  then 
fortify  it  upon  those  points.  Clayes  v. 
Ferris,  10  Vt.  112.  But,  in  this  State, 
the  defendant  must  put  in  all  his  evi- 
dence in  the  first  instance,  and  the  plain- 
tiff in  his  reply  is  confined  to  fortifying 
those  points  in  his  case  which  are  at- 
tacked by  defendant.  And,  in  some  of 
the  States,  it  is  understood,  that  this 
process  of  making  and  answering  the 
plaintiff's  case  is  allowed  to  be  repeated 
an  indefinite  number  of  times.  But,  at 
common  law,  the  plaintiff  puts  in  his 
whole  evidence  upon  every  point  which 
he  opens,  and  the  defendant  then  puts  in 
his  entire  case  ;  and  the  plaintiff's  reply 
is  limited  to  new  points,  first  opened  by 
defendant.  And  the  court  in  banc,  in 
passing  upon  the  sufficiency  of  plaintifiTs 
case,  cannot  look  at  the  defendant's  evi- 
dence. Rawlings  i'.  Chandler,  9  Exch. 
687.  And  it  is  held  to  rest  in  the  discre- 
tion of  the  judge,  subject  to  review  in 
banc,  at  what  stage  in  the  trial  evidence 
may  be  produced.  Wright  v.  Willcox,  9 
C.  B.  650.  The  judge  may  recall  a  wit- 
ness at  any  stage  of  the  trial,  and  exam- 
ine or  cross-examine  at  his  discretion. 
Rex  t;.  Watson,  6  C.  &  P.  653.] 


VOL.   1. 


Si 


630  LAW  OF  EVIDENCE.  *   [PAET  IH. 


CHAPTER  IV. 

OP  WBITTEN  EVIDENCE. 

§  470.  Public  and  private  writings.  Writings  are  divisible  into 
two  classes  ;  namely,  Public  and  Private.  The  former  con- 
sists of  the  acts  of  public  functionaries,  in  the  executive^  legisla- 
tive, and  judicial  departments  of  government,  including,  under 
this  general  head,  the  transactions  which  official  persons  are  re- 
quired to  enter  in  books  or  registers,  in  the  course  of  their  public 
duties,  and  which  occur  within  the  circle  of  their  own  personal 
knowledge  and  observation.  To  the  same  head  may  be  referred 
the  consideration  of  documentary  evidence  of  the  acts  of  State, 
the  laws  and  judgments  of  courts  of  foreign  governments.  Pub- 
lic writings  are  susceptible  of  another  division,  they  being  either 
(1)  judicial,  or  (2)  not  judicial ;  and,  with  respect  to  the  means 
and  mode  of  proving  them,  they  may  be  classed  into  (1)  those 
which  are  of  record,  and  (2)  those  which  are  not  of  record.  It 
is  proposed  to  treat,  first,  of  public  documents  ;  and,  secondly,  of 
those  writings  which  are  private.  And,  in  regard  to  both  classes, 
our  inquiries  will  be  directed  (1)  to  the  mode  of  obtaining  an 
inspection  of  such  documents  and  writings ;  (2)  to  the  method  of 
proving  them  ;  and  (3)  to  their  admissibility  and  effect. 

§  471.  Inspection  of  public  documents.  And,  first,  in  regard  to 
the  INSPECTION  OF  PUBLIC  DOCUMENTS,  it  has  been  admitted, 
from  a  very  early  period,  that  the  inspection  and  exemplification 
of  the  records  of  the  king^s  courts  is  the  common  right  of  the  sub- 
ject. This  right  was  extended,  by  an  ancient  statute,*  to  cases 
where  the  subject  was  concerned  against  the  king.  The  exercise 
of  this  right  does  not  appear  to  have  been  restrained  until  the 
reign  of  Charles  II.,  when,  in  consequence  of  the  frequency  of 
actions  for  malicious  prosecution,  which  could  not  be  supported 
without  a  copy  of  the  record,  the  judges  made  an  order  for  the 
regulation  of  the  sessions  at  the  Old  Bailey  prohibiting  the  grant- 
ing of  any  copy  of  an  indictment  for  felony,  without  a  special 

»  46  Ed.  III.,  in  the  Preface  to  3  Coke,  p.  ir. 


CHAP.  IV.]  PUBLIC  DOCUMENTS.  631 

order,  upon  motion  in  open  court,  at  the  general  jail  delivery.^ 
This  order,  it  is  to  be  observed,  relates  only  to  indictments  for 
felony.  In  cases  of  misdemeanor,  the  right  to  a  copy  has  never 
been  questioned.^  But  in  the  United  States,  no  regulation  of 
this  kind  is  known  to  have  been  expressly  made ;  and  any  limi- 
tation of  the  right  to  a  copy  of  a  judicial  record  or  paper,  when 
applied  for  by  any  person  having  an  interest  in  it,  would  prob- 
ably be  deemed  repugnant  to  the  genius  of  American  institu- 
tions.^ 

§  472.  Papers  in  hands  of  an  officer  of  court.  Where  writs,  or 
otlier  papers  in  a  cause,  are  officially  in  the  custody  of  an  officer  of 
the  courts  he  may  be  compelled  by  a  rule  of  court  to  allow  an  in- 
spection of  them,  even  though  it  be  to  furnish  evidence  in  a  civil 
action  against  himself.  Thus,  a  rule  was  granted  against  the 
marshal  of  the  King's  Bench  prison,  in  an  action  against  him  for 
an  escape  of  one  arrested  upon  mesne  process,  to  permit  the  plain- 
tiff's attorney  to  inspect  the  writ  by  which  he  was  committed  to 
his  custody.^ 

§  473.  Records  of  inferior  tribunals.  In  regard  to  the  records  of 
inferior  tribunals^  the  right  of  inspection  is  more  limited.  As  all 
persons  have  not  necessarily  an  interest  in  them,  it  is  not  neces- 
sary that  they  should  be  open  to  the  inspection  of  all,  without 
distinction.  The  party,  therefore,  who  wishes  to  inspect  the  pro- 
ceedings of  any  of  those  courts,  should  first  apply  to  that  court, 
showing  that  he  has  some  interest  in  the  document,  and  that  he 
requires  it  for  a  proper  purpose.^  If  it  should  be  refused,  the 
Court  of  Chancery,  upon  affidavit  of  the  fact,  may  at  any  time 

1  Orders  and  Directions,  16  Car.  II.,  use  he  might  think  fit  to  make  of  it;  and 
prefixed  to  Sir  J.  Kelyng's  Reports,  Or-  that,   after  a   demand   of    it   had    been 
der  vii.      With  respect  to   the   general  made,  the  proper  oflBcer  might  be  pun- 
records  of  the  reahu,  in  such  cases,  copies  ished  for  refusing  to  make  it  out."    A 
are    obtained    upon   application    to   the  strong  doubt  of  the  legality  of  tlie  order 
attorney-general.     Lcggatt  v.  Tollervey,  of  16  Car.  II.  was  also  raised  in  Browne 
14  East,  3U6.     But  if  the  copy  were  ob-  v.  Gumming,  10  B.  &  C.  70. 
tained  without  order,  it  will  not,  on  that  ^  Morrison  v.  Kelley,  1  W.  Bl.  385. 
account,  be  rejected.     Ibid. ;   Jordan  v.  3  Stone  v.  Crocker,  24  Pick.  88,  per 
Lewis,  Id.  39.5,  n.  (b);  Caddy  v.  Barlow,  Morton,  J.    The  only  case,  known  to  the 
1  AL  &  Ry.  275.     But  Lord  Chief  Justice  author,  in  which  the  English  rule  was 
Willes,  in  Re.x  1;.  Brangam,  1  Leach,  Cr.  acted  on,  is  that  of  The  People  v.  PoUyon, 
Cas.  32,  in  the  case  of  a  prosecution  for  2  Caines,  202,  in  which  a  copy  was  moved 
robbery,  evidently  vexatious,  refused  an  for  and  granted, 
application  for  a  copy  of  the  record,  on          <  Fox  v.  Jones,  7  B.  &  C.  732. 
the  ground  that  no  order  was  necessary  ;          5  If  he  has  no  legal  interest  in  the 
declaring,  that  "by  the  laws  of  the  realm  record,  the  court  may  refuse  the  applica- 
every  prisoner,  upon  his  acquittal,  had  tion.     Powell  v.  Bradbury,  4  M.  G.  &  Sc 
an  undoubted  right  and  title  to  a  copy  541 ;  infra,  §  559. 
of  the  record  of  such  acquittal,  for  any 


532  LAW  OF  EVIDEKCE.  [PAKT  IlL 

send,  by  a  writ  of  certiorari,  either  for  the  record  itself,  or  an 
exemplification.  The  King's  Bench  in  England,  and  the  Su- 
preme Courts  of  common  law  in  America,  have  the  same  power 
by  mandamus  ;  ^  and  this  whether  an  action  be  pending  or  not.^ 

§  474.  Quasi  public  records.  There  are  other  records  which  par- 
take both  of  a  2yuhlic  and  private  character,  and  are  treated  as  the 
one  or  the  other,  according  to  the  relation  in  which  the  applicant 
stands  to  them.  Thus,  the  books  of  a  corporation  are  public 
with  respect  to  its  members,  but  private  with  respect  to  stran- 
gers.3  In  regard  to  its  members,  a  rule  for  inspection  of  the 
writings  of  the  corporation  will  be  granted  of  course,  on  their 
application,  where  such  inspection  is  shown  to  be  necessary,  in 
regard  to  some  particular  matter  in  dispute,  or  where  the  grant- 
ing of  it  is  necessary,  to  prevent  the  applicant  from  suffering  in- 
jury, or  to  enable  him  to  perform  his  duties ;  and  the  inspection 
will  then  be  granted,  only  so  far  as  is  shown  to  be  essential  to 
that  end.*  But  a  stranger  has  no  right  to  such  rule,  and  it  will 
not  be  granted,  even  where  he  is  defendant  in  a  suit  brought  by 
the  corporation.^  In  this  class  of  records  are  enumerated  parish 
books,^  transfer  books  of  the  East  India  Company,^  public  lottery 
books,^  the  books  of  incorporated  banking  companies,^  a  bishop's 
registry  of  presentations,^*^  and  some  others  of  the  like  kind.  If 
an  inspection  is  wanted  by  a  stranger,  in  a  case  not  within  this 
rule  of  the  common  law,  it  can  only  be  obtained  by  a  bill  for  a 
discovery  ;  a  court  of  equity  permitting  a  discovery  in  some 
cases,  and  under  some  circumstances,  where  courts  of  law  will  not 
grant  an  inspection."     And  an  inspection  is  granted  only  where 

1  Gresley  on  Evid.  pp.  115,  116;  Wil-  Ad.  649  ;  Bank  of  Utica  v.  Hilliard,  5 
son  V.  Rofjers,  2  Stra.  1242;  He.\  v.  Smith,  Cowen,  419;  s.  c.  6  Cowen,  62;  Imperial 
1  Stra.  120;  Hex  v.  Tower,  4  M.  &  S.  1(52;  Gas  Co.  v.  Clarke,  7  Bing.  95  ;  Ilex  v. 
Herbert  v.  Asliburner,  1  Wils.  297 ;  Rex  Justices  of  Buckingham,  8  B.  &  C.  375 

i;.  Allgood,  7  T.  R.  746;  Rex  v.  Sheriff  of  6  C(,x  v.  Copping,  5  Mod.  395;  Newell 

Chester,  1  Chitty,  479.  v.  Simkin,  6  Bing.  565;  Jacocks  v.  Gil- 

2  Rex  V.  Lucas,  10  East,  235,  236,  per     liam,  3  Murpli.  47. 

Ld.  Ellenhorough.  7  Geery  v.  IIopl<ins,  2  Ld.  Raym.  851 ; 

8  Gresley  on  Evid.  116.  s.  c.  7  Mod.  129;  Siielling  v.  Farmer,  1 

♦  Rex  ('.  Merchant  Tailors'  Co.,  2  B.  &  Str.  646. 
Ad.  115;  State  of  Louisiana,  er  re/.  Hatch  »  Scliinotti  v.  Bumstead,  1  Tidd's  Fr. 

V.  City  Bank  of  New  Orleans,  Sup.  Court  694. 

La.,  March    T.    1842;    The    Feople    t;.  ^  Brace  c.  Orinond,  1  Meriv.  409;  The 

Throop,  12  Wend.  183.  People  v.  Throop,  12  Wend.  183;  Union 

6  Mayor  of  Soutliampton  v.  Greaves,  Bank  i-.   Knapp,  3  Pick.  96   [M(!Kavlin 

8  T.  R.  690.     The  party,  in  such  case,  v.   Bresslin,  8  Gniv,  1771;    Mortimer  v. 

can  only  give  notice  to  the  corporation  M'Cailan,  6  M.  &  W.  58. 
to  produce  its  books  and  papers,  as  in         lo  Rex  v.  Bishop  of  Kly,  8  B,  &C.  112; 

other  cases  between  private  persons.   See,  Finch  v.  Bishop  of  Ely,  2  M.  &  Ky.  127. 
accordingly,  Burrell  v.  Nicholson,  3  B.  &        "  Gresley  on  Evid.  116  117. 


CHAP.  rV.]  PUBLIC   DOCLTMENTS.  533 

civil  rights  are  depending ;  for  it  is  a  constant  and  invariable 
rule,  that,  in  criminal  cases,  the  party  shall  never  be  obliged  to 
furnish  evidence  against  himself.^ 

§  475.  Books  of  public  officers.  Inspection  of  the  hooks  of  pub- 
lic officers  is  subject  to  the  same  restriction  as  in  the  case  of 
corj^oration  books  ;  and  access  to  them  will  not  be  granted  in 
favor  of  persons  who  have  no  interest  in  the  books.  Thus,  an 
inspection  of  the  books  of  the  post-office  has  been  refused,  upon 
the  application  of  the  plaintiff,  in  a  qui  tarn  action  against  a  clerk 
in  the  post-office,  for  interfering  in  the  election  of  a  member  of 
Parliament,  because  the  action  did  not  relate  to  any  transaction 
in  the  post-office,  for  which  alone  the  books  were  kept.^  Upon 
the  same  ground,  that  the  subject  of  the  action  was  collateral  to 
the  subject-matter  and  design  of  the  books,  an  inspection  of  the 
books  of  the  custom-house  has  been  refused.^  Such  inspections 
are  also  sometimes  refused  on  grounds  of  public  policy,  the  dis- 
closure sought  being  considered  detrimental  to  the  public  interest. 
Upon  the  same  principle  of  an  interest  in  the  books,  the  tenants 
of  a  manor  are  generally  entitled  to  an  inspection  of  the  court- 
rolls,  wherever  their  own  rights  are  concerned  ;  but  this  privilege 
is  not  allowed  to  a  stranger.* 

§  476.  No  right  of  inspection  if  against  public  interest.  But,  in 
all  cases  of  public  writings,  if  the  disclosure  of  their  contents 
would,  either  in  the  judgment  of  the  court  or  of  the  chief  execu- 
tive magistrate,  or  the  head  of  department,  in  whose  custody  or 
under  whose  control  they  may  be  kept,  be  injurious  to  the  public 
interests,  an  inspection  will  not  be  granted.^ 

§  477.  How  to  obtain  inspection  •when  action  is  pending.  The 
motion  for  a  rule  to  inspect  and  take  copies  of  books  and  writ- 
ings, when  an  action  is  pending,  may  be  made  at  any  stage  of  the 
cause,  and  is  founded  on  an  affidavit,  stating  the  circumstances 
under  which  the  inspection  is  claimed,  and  that  an  application 
therefor  has  been  made  to  the  proper  quarter,  and  refused.^ 

1  TickVs  Pr.  593.  Under  this  rule,  an  Allgood,  7  T.  R.  746.  See  Rex  v.  Host- 
information,  in  tlie  nature  of  a  quo  war-  men  of  Newcastle,  2  Stra.  1223,  n.  (1), 
7-anto,  is  considered  as  merely  a  civil  pro-  by  Nolan. 

ceeding.    Rex  v.  Babb,  3  T.  R.  682.    See  ^  Supra,  §§  250,  251,  and  cases  there 

also  Rex  v.  Dr.  Purnell,  1  Wils.  239.  cited. 

^  Crew  V.   Blackburne,  cited  1  Wils.  ^  Tidd's  Pr.  595,  596.     [See  lasigi  v. 

210 ;  Crew  v.  Saunders,  2  Str.  1005.  Brown,    1    Curtis,    Ct.    Ct   401  ;    infra, 

3  Atherfold  v.  Beard,  2  T.  R.  610.  §  659.1 

4  Rex  V.  Shelley,  3  T.  R.  141 ;  Rex  v. 


534  LAW   OF  EVIDENCE.  [PABT  HI. 

§  478.  "When  no  action  is  pending.  But  wJien  no  action  is  pend- 
ing, the  proper  course  is  to  move  for  a  rule  to  show  cause  why  a 
mandamus  should  not  issue,  commanding  the  officer  having  cus- 
tody of  the  books  to  permit  the  applicant  to  inspect  them,  and  take 
copies.  The  application  in  this  case  should  state  some  specific 
object  sought  by  the  inspection,  and  be  supported  by  an  affidavit, 
as  in  the  case  preceding.  If  a  rule  is  made  to  show  cause  why  an 
information,  in  the  nature  of  a  quo  warranto,  should  not  be  filed, 
a  rule  for  an  inspection  will  be  granted  to  the  prosecutor,  imme- 
diately upon  the  granting  of  a  rule  to  show  cause.  But  if  a  rule 
be  made  to  show  cause  why  a  mandamus  should  not  be  awarded, 
the  rule  for  an  inspection  will  not  be  granted,  until  the  manda- 
mus has  been  issued  and  returned. ^ 

§  479.  Mode  of  proof.  Acts  of  State.  We  proceed  now  to  con- 
sider the  MODE  OF  PROOF  of  public  documents,  beginning  with 
those  which  are  not  judicial.  And,  first,  of  acts  of  State.  It  has 
already  been  seen,  that  courts  will  judicially  take  notice  of  the 
political  constitution  or  frame  of  the  government  of  their  own 
country,  its  essential  political  agents,  or  officers,  and  its  essential 
ordinary  and  regular  operations.  The  great  seal  of  the  State  and 
the  seals  of  its  judicial  tribunals  require  no  proof.^  Courts  also 
recognize,  without  other  proof  than  inspection,  the  seals  of  State 
of  other  nations,  which  have  been  recognized  by  their  own  sov- 
ereign. The  seals,  also,  of  foreign  courts  of  admiralty,  and  of 
notaries-public,  are  recognized  in  the  like  manner.^  Public  stat- 
utes, also,  need  no  proof,  being  supposed  to  exist  in  the  memories 
of  all ;  but,  for  certainty  of  recollection,  reference  is  had  either 
to  a  copy  from  the  legislative  rolls,  or  to  the  book  printed  by 
public  authority.*  Acts  of  State  may  be  proved  by  production 
of  the  original  printed  document,  from  a  press  authorized  by 
government.^  Proclamations,  and  other  acts  and  orders  of  the 
executive,  of  the  like  character,  may  be  proved  by  production  of 
the  government  gazette,  in  which  they  were  authorized  to  be 

1  1  Tidd's  Pr.  596;  Hex  v.  Justices  of  a  foreign  country,  is  sufficiently  proved 
Surrey,  Sayer,  144;  Rex  v.  Shelley,  3  by  the  seal  of  the  foreign  notary.  Willes, 
T.  R.  141;  Rex  t'.  Ilollister,  Cas.  temp.  550;  Anon.,  12  Mod.  345;  Bayley  on 
Hardw.  245.  Bills,  515  (Phillips  &  Sewall's  ed.) ;  Story 

2  Wearnack  v.  Dearman,  7  Port.  513.     on  Bills,  §§  27(5,  277 ;  La  Caygas  v.  Lari- 
8  Supra,  §§  4-5;  Story  on   Confl.  of     onda,  4  Mart.  283. 

Laws,   §    643  ;    Robinson   v.   Gilman,    7  *  Bull.  N.  P.  225. 

Shepl.  299;    Coit  v.  Milliken,  1  Denio,  ^  Rex  v.  Withers,  cited  5  T.  R.  436; 

376.    A  protest  of  a  bill  of  exchange,  in     Watkins  v.  Holman,  16  Peters,  25. 


CHAP,  rv.] 


PUBLIC  DOCUMENTS. 


585 


printed.^  Printed  copies  of  public  documents,  transmitted  to 
Congress  by  the  President  of  the  United  States,  and  printed  by 
the  printer  to  Congress,  are  evidence  of  those  documents.^  And 
here  it  may  be  proper  to  observe,  that,  in  all  cases  of  proof  by  a 
copy,  if  the  copy  has  been  taken  by  a  machine,  worked  by  the 
witness  who  produces  it,  it  is  sufficient.^  The  certificate  of  the 
Secretary  of  State  is  evidence  that  a  particular  person  has  been 
recognized  as  a  foreign  minister.*  And  the  certificate  of  a  for- 
eign governor,  duly  authenticated,  is  evidence  of  his  own  official 
acts.^ 

§  480.  Legislative  acts.  Next,  as  to  legislative  acts,  which  con- 
sist of  statutes,  resolutions,  and  orders,  passed  by  the  legislative 
body.  In  regard  to  private  statutes,  resolutions,  &c.,  the  only 
mode  of  proof,  known  to  the  common  law,  is  either  by  means  of 
a  copy,  proved  on  oath  to  have  been  examined  by  the  roll  itself ; 
or,  by  an  exemplification  under  the  great  seal.  But  in  most  if 
not  all  of  the  United  States,  the  printed  copies  of  the  laws  and 
resolves  of  the  legislature,  published  by  its  authority,  are  compe- 
tent evidence  either  by  statute  or  judicial  decision ;  and  it  is 
sufficient,  prima  facie,  that  the  book  purports  to  have  been  so 
printed.^    It  is  the  invariable  course  of  the  legislatures  of  the 


1  Rex  V.  Holt,  5  T.  R.  436 ;  Van  Om- 
eron  v.  Dowick,  1  Campb.  42  ;  Bull.  N.  P. 
226 ;  Attorney-General  v.  Theakstone,  8 
Price,  89.  An  appointment  to  a  commis- 
sion in  the  ami}'  cannot  be  proved  by 
the  gazette.  Rex  v.  Gardner,  2  Campb. 
513;  Kirwan  v.  Cockburn,  5  Esp.  23.3. 
See  also  Rex  v.  Forsyth,  R.  &  Ry.  274, 
275. 

'^  Radcliff  V.  United  Ins.  Co.,  7  Johns. 
88,  per  Kent,  C.  J.  [The  American 
State  Papers,  published  by  order  of 
Congress,  are  admissible  as  evidence ; 
and  the  copies  of  documents  contained 
are  evidence,  like  the  originals.  Nixon 
r.  Porter,  34  Miss.  697;  Dutillet  v.  Blan- 
chard,  14  La.  Ann.  97;  Bryan  v.  Forsyth, 
19  How.  (U.  S.)  334.  So  are  the  copies, 
j-rir.ted  by  tiie  United  States  Senate, 
of  public  documents,  communicated  to 
theSenate  by  the  President.  Whiton  v. 
Albany  City  Ins.  Co.,  lOV)  Mass.  24.  A 
proclamation  of  the  governor  of  a  State, 
declaring  who  is  elected  to  Congress,  is 
prima  facie  evidence  of  the  facts  therein 
stated.  Linton  v.  Gilliam,  2  111.  577; 
ante,  §  6.] 

3  Simpson  v.  Thoreton,  2  M.  &  Rob. 
43.3 


*  United  States  v,  Benner,  1  Baldw. 
238. 

5  United  States  v.  Mitchell,  3  Wash.  5. 

8  Young  V.  Bank  of  Alexandria,  4 
Cranch,  888 ;  Biddis  i'.  James,  6  Binn. 
821,  326 ;  Rex  v.  Forsyth,  Russ.  &  Ry, 
275.  See  infra,  §  489.  [As  to  the  effect 
to  be  given  to  the  volume  termed  the 
"  Revised  Statutes  of  Connecticut,"  see 
Eld  V.  Gorham,  20  Conn.  8.  The  testi- 
mony of  an  attorney  at  law  of  another 
State  is  not  legal  evidence  of  the  statute 
law  of  that  State,  where  it  affects  the 
merits  of  the  case.  Smith  v.  Potter, 
1  Williams  (Vt.),  304.  But  see  post, 
§  487,  n.,  at  the  end.  But  the  statute 
being  proved,  an  attorney  may  testify  as 
to  its  interpretation.  Walker  v.  Forbes, 
31  Ala.  9.  In  Massachusetts,  it  is  pro- 
vided by  statute  that  "all  acts  of  incor- 
poration shall  be  deemed  public  acts,  and, 
as  such,  may  be  declared  on  and  given  in 
evidence,  without  specially  pleading  the 
same."  Rev.  Stat.  c.  2,  §  3.  In  Ohio,  it 
is  enacted,  that,  in  pleading  a  private  stat- 
ute or  a  right  derived  therefrom,  it  shall 
be  sufficient  to  refer  to  such  statute  by  its 
title  and  the  day  of  its  passage,  and  the 
court  shall  thereupon  take  judicial  notica 


536 


LAW   OF   EVIDENCE. 


[part  in. 


several  States,  as  well  as  of  the  United  States,  to  have  the  laws 
and  resolutions  of  each  session  j)rinted  by  authority.^  Confi- 
dential persons  are  selected  to  compare  the  copies  with  the  origi- 
nal rolls,  and  superintend  the  prhiting.  The  very  object  of  this 
provision  is  to  furnish  the  people  with  authentic  copies ;  and, 
from  their  nature,  printed  copies  of  this  kind,  either  of  public  or 
private  laws,  are  as  much  to  be  depended  on  as  the  exempli  fia- 
tion,  verified  by  an  officer  who  is  a  keeper  of  the  record.^ 

§  481.  Same  subject  If  in  Si  jyrivate  statute  a  clause  is  inserted, 
that  it  shall  be  taken  notice  of,  as  if  it  were  a  public  act ;  this  not 
only  dispenses  with  the  necessity  of  pleading  it  specially,  but  also 
changes  the  mode  of  proof,  by  dispensing  with  the  production  of 
an  exemplified  or  sworn  copy.'^ 

§  482.  Legislative  journals.  In  regard  to  the  joxirnals  of  either 
branch  of  the  legislature,  a  former  remark  ^  may  be  here  repeated, 
equally  applicable  to  all  other  public  records  and  documents; 
namely,  that  they  constitute  an  exception  to  the  general  rule, 
which  requires  the  production  of  the  best  evidence,  and  may  be 


thereof.  "Rev.  Stat,  by  Curwen  (185^), 
vi)l.  iii.  p.  1956.  In  matters,  usually  of 
statutory  regulation,  there  is  no  pre- 
sumption that  tlie  law  of  another  State 
is  the  same  as  that  of  the  forum  of  trial. 
Gordon  v.  Ward,  16  Mich.  360.  See  also 
Cutler  V.  Wright,  22  N.  Y.  472;  Smith  v. 
Whittaker,  23  111.  367.] 

1  [The  edition  of  tlie  Laws  and  Trea- 
ties of  the  United  States,  published  by 
Little  «&;  Brown,  is  declared  to  be  compe- 
tent evidence  of  the  several  public  and 
private  acts  of  Congress  and  of  the  sev- 
eral treaties  therein  contained,  in  all  the 
courts  of  law  and  equity  and  of  mari- 
time jurisdiction,  and  in  all  the  tribunals 
and  public  offices  of  the  United  States, 
and  of  the  several  States,  without  any 
further  proof  or  authentication  thereof. 
Stat.  1846,  c.  100,  §  2;  y  Stats,  at  Large, 
p.  76.] 

2  Per  Tilghman,  C.  J.,  6  Binn.  326. 
See  also  Watkins  v.  Ilolman,  16  Peters, 
25;  Holt,  C.  J.,  held,  that  an  act,  printed 
by  the  king's  printers,  was  always  good 
evidence  to  a  jury ;  though  it  was  not 
sufficient  upon  an  issue  of  nul  tiel  record. 
Anon.,  2  Salk.  566.  [The  laws  revised 
and  adopted  by  the  territorial  legislature 
of  Michigan,  in  1827,  were  the  statutes 
US  prfvioiis/ij  />riril(:d.  It  was  held,  that  the 
printed  hook  containing  the  statute  is  the 
best  evidence  of  what  the  statute  actually 
was,  and  that  the  original  record  is  not  to 
be  received  to  show  that  the  printed  book 


is  incorrect,  or  as  evidence  of  the  statute, 
as  adopted  and  enacted  at  that  time. 
Especially  will  this  be  so  where  the  error 
is  not  discovered  for  a  long  time,  and  the 
statute  is  treated  and  considered  as  the 
actual  law.  Pease  v.  Peck,  18  How. 
(U.  S.)  595.  It  is  a  much-mooted  ques- 
tion, whether  the  courts  will  go  behind 
tiie  certificate  of  enactment  of  a  statute, 
to  inquire  whether  it  was  duly  enacted. 
That  they  will  not,  see  Speer  v.  Plank 
Koad  Co.,  22  Penn.  St.  376;  People  v.  Dev- 
lin, 33  N.  Y.  209;  Auditor  v.  Brown,  30 
Ind.  514,  overruling  Colman  l-.  Dobbins, 
8  Ind.  156  ;  Fouke  v.  Flemming,  13  Md. 
392 ;  Eld  V.  Gorham,  20  Conn.  8  ;  Mayor 
V.  Harwood,  32  Md.  471 ;  La.  St.  Lottery 
I'.  Richeu.x,  23  La.  Ann.  743;  Duncomb 
('.  Prindle,  12  Iowa,  1  ;  Pangborn  o. 
Young,  32  N.  J.  L.  29;  Penn.  li.  K.  Co. 
V.  Gormor,  23  Mo.  353 ;  Green  v.  Weller, 
32  Miss.  650.  That  they  will,  see  People 
V.  Mahoney,  13  Mich.  492 ;  People  v. 
Sterne,  35  111.  121 ;  Goodman  v.  The  Col- 
lector, 6  Wall.  (U.  S.)  499;  Osborn  v. 
Staley,  5  W.  Va.  85 ;  Op.  of  Judges,  52 
N.  II.  622.] 

3  Beaumont  v.  Mountain,  10  Bing.  404. 
The  contrary  seems  to  have  been  held  in 
Brett  V.  Beales,  1  M.  &  Malk.  421;  but 
that  case  was  overruled,  as  to  this  point, 
in  Woodward  i;.  Cotton,  1  C.  M.  &  U.  44, 
47. 

*  Supra,  §  91. 


CHAP.  IV.]  PUBLIC   DOCUMENTS.  537 

proved  by  examined  copies.  This  exception  is  allowed,  because 
of  their  nature,  as  original  public  documents,  which  are  not 
removable  at  the  call  of  individuals,  and  because,  being  interest- 
ing to  many  persons,  they  might  be  necessary,  as  evidence,  in 
different  places  at  the  same  time.^  Moreover,  these  being  public 
records,  they  would  be  recognized  as  such  by  the  court,  upon 
being  produced,  without  collateral  evidence  of  their  identity  or 
genuineness ;  and  it  is  a  general  rule,  that,  whenever  the  thing 
to  be  proved  would  require  no  collateral  proof  upon  its  produc- 
tion, it  is  provable  by  a  copy.^  These  journals  may  also  be 
proved  by  the  copies  printed  by  the  government  printer,  by 
authority  of  the  House  .^ 

§  483.  Official  registers.  The  next  class  of  public  writings  to 
be  considered  consists  of  official  registers^  or  books  kept  by  per- 
sons in  public  office,  in  which  they  are  required,  whether  by 
statute  or  by  the  nature  of  their  office,  to  write  down  particular 
transactions,  occurring  in  the  course  of  their  public  duties,  and 
under  their  personal  observation.  These  documents,  as  well  as 
all  others  of  a  public  nature,  are  generally  admissible  in  evidence, 
notwithstanding  their  authenticity  is  not  confirmed  by  those 
usual  and  ordinary  tests  of  truth,  the  obligation  of  an  oath,  and 
the  power  of  cross-examining  the  persons,  on  whose  authority 
the  truth  of  the  documents  depends.  The  extraordinary  degree 
of  confidence,  it  has  been  remarked,  which  is  reposed  in  such 
documents,  is  founded  principally  upon  the  circumstance,  that 
they  have  been  made  by  authorized  and  accredited  agents  ap- 
pointed for  the  purpose  ;  but  partly  also  on  the  publicity  of  their 
subject-matter.  Where  the  particular  facts  are  inquired  into  and 
recorded  for  the  benefit  of  the  public,  those  who  are  empowered 
to  act  in  making  such  investigations  and  memorials  are  in  fact 
the  agents  of  all  the  individuals  who  compose  the  State  ;  and 
every  member  of  the  community  may  be  supposed  to  he  privy  to 
the  investigation.  On  the  ground,  therefore,  of  the  credit  due  to 
agents  so  empowered,  and  of  the  public  nature  of  the  facts  them- 
selves, such  documents  are  entitled  to  an  extraordinar}-  degree 
of  confidence  ;  and  it  is  not  necessary  that  they  should  be  con- 

1  Lord  Melville's  case,  29  Howell's  St.  2  Rex  v.  Smitli,  1  Stra.  12G. 

Tr.  683-685;   Rex  v.  Lord  George  Gor-         »  Root  v.   King,  7  Cowen,  613,  636; 

don,  2  Doug.  693,  and  n.  (3);  Jones  v.  Watkins  v.  Holman,  16  Peters,  25.    [And 

Randall,   Lofft,    383,  428;   8..  c.    Cowp.  see  also  post,  §  484. j 
17. 


638  '  LAW   OF  EVIDENCE.  [PAET  HI. 

firmed  and  sanctioned  by  the  ordinary  tests  of  truth.  Besides 
this,  it  would  always  be  difficult,  and  often  impossible,  to  prove 
facts  of  a  public  nature,  by  means  of  actual  witnesses  upon 
oath.i 

§  484.  Same  subject.  These  books,  therefore,  are  recognized 
by  law,  because  they  are  required  by  law  to  be  kept,  because  the 
entries  in  them  are  of  public  interest  and  notoriety,  and  because 
they  are  made  under  the  sanction  of  an  oath  of  office,  or  at  least 
under  that  of  official  duty.  They  belong  to  a  particular  custody, 
from  which  they  are  not  usually  taken  but  by  special  authority, 
granted  only  in  cases  where  inspection  of  the  book  itself  is  nec- 
essary, for  the  purpose  of  identifying  the  book,  or  the  handwrit- 
ing, or  of  determining  some  question  arising  upon  the  original 
entry,  or  of  correcting  an  error  which  has  been  duly  ascertained. 
Books  of  this  public  nature,  being  themselves  evidence,  when 
produced,  their  contents  may  be  proved  by  an  immediate  copy 
duly  verified.2  Of  this  description  are  parish  registers  ;  ^  the 
books  of  the  Bank  of  England,  which  contain  the  transfers  of 
public  stock  ;  *  the  transfer  books  of  the  East  India  Company  ;  ^ 
the  rolls  of  courts  baron ;  ^  the  books  which  contain  the  official 
proceedings  of  corporations,  and  matters  respecting  their  prop- 
erty, if  the  public  at  large  is  concerned  with  it ;  ''■  books  of  assess- 
ment of  public  rates  and  taxes  j^  vestry  books  ;9  bishops' registers, 
and  chapter-house  registers  ;  ^o  terriers  ;  ^^  the  books  of  the  post- 
office,  and  custom-house,  and  registers  of  other  public  offices  ;  ^^ 

1  1  Stark.  Evid.  195;  supra,  §  128.  per  Patteson,  J. ;  Doe  v.  Arkwright,  Id. 

2  Lynch  v.  Clerke,  3  Salk.  154,  per  182,  n.,  per  Denman,  C.  J.;  Hex  v. 
Holt,  C.  J.;  2  Doug.  593,  594,  n.  (3).  King,  2T.  R.  234 ;  Konkendorffy.  Taylor, 
The  handwriting  of  the  recording  or  at-  4  Peters,  349,  3G0;  Doe  v.  Cartwright, 
testing  officer  is,  prima  facie,  presumed  Ry.  &  My.  62. 

genuine.     Bryan  v.  Wear,  4  Mo.  lOG.  9  Rex  v.  Martin,  2  Campb.  100.     See, 
8  2    Plnl.    Kvid.    183-186 ;    Lewis   v.  as  to  church   records.    Sawyer   v.  Bald- 
Marshall,   5   Peters,  472,   475;  1    Stark,  win,  11  Pick.  494. 

Evid.  205.     See  Childress  v.  Cutter,   16  i"  Arnold  r.  Bishop  of  Bath  and  Wells, 

Mo.  24.  6  Bing.  316 ;  Coombs  v.  Coether,  1  M.  & 

*  lireton   v.   Cope,   Peake's    Cas.  30;  Malk.  398. 

Marsh  v.  Collnett,  2  Esp.  655;  Mortimer  "  Bull.  N.  P.  248;  1  Stark.  Evid.  201. 

i;.  M'Callan,  6  M.  &  \V.  58.  [See  infra,  §  496.] 

6  2  Doug  593,  n.  (3).  12  Bull.  N.  V.  249;  Rex  v.  Fitzgerald, 
«  Bull.  N.  P.  247;  Doe  v.  Askew,  10  1  Leach,  Cr.  Cas.  24  ;  Rex  v.  Rhodes,  Id. 

East,  520.  29  ;  D'Israeli  v.  Jowott,  1  Esp.  427  ;  Bar- 

7  Warriner  v.  Giles,  2  Stra.  954;  Id.  ber  i-.  Holmes,  3  Esp.  190;  Wallace  v. 
122.3,  n.  (1);  Marriage  v.  Lawrence,  3  B.  Cook,  6  Esp.  117;  Johnson  v.  Ward,  6 
&  Aid.  144.  per  Abbott,  C.  J. ;  Gibbon's  Esp.  48 ;  Tomkins  v.  Attorney-General, 
case,  17  Howell's  St.  Tr.  810;  Moore's  1  Dow,  404 ;  Rex  v.  Grimwood,  1  Price, 
case.  Id.  854  ;  Owings  i>.  Speed,  5  Wheat.  869;  Henry  v.  Leigh,  3  Campb.  499; 
420.  United     States    v.  Johns,   4    Dall.  412, 

8  Doe  V.  Beaton,  2  Ad.  &  El.  171,  178,  415. 


CHAP.  IV.] 


PUBLIC   DOCUMENTS. 


539 


prison  registers  ;  ^  enrolment  of  deeds ;  ^  the  registers  of  biiths 
and  of  marriages,  made  pursuant  to  the  statutes  of  any  of 
the  United  States  ;  ^  the  registration  of  vessels  in  the  custom- 
house ;  ^  and  the  books  of  record  of  the  transactions  of  towns, 
city  councils,  and  other  municipal  bodies."  In  short,  the  rule 
may  be  considered  as  settled,  that  every  document  of  a  public 
nature,  which  there  would  be  an  inconvenience  in  removing,  and 
which  the  party  has  a  right  to  inspect,  may  be  proved  by  a  duly 
authenticated  copy.^ 

§  485.  Requisites  of  official  character.  It  is  deemed  essential  to 
the  official  character  of  these  books,  that  the  entries  in  them  be 
made  promptly,  or  at  least  without  such  long  delay  as  to  impair 
their  credibility,  and  that  they  be  made  by  the  person  whose 
duty  it  was  to  make  them,  and  in  the  mode  required  by  law,  if 
any  has  been  prescribed.^     When  the  books  themselves  are  pro- 


1  Sake  V.  Thomas,  3  B.  &  P.  188 ;  Rex 
V.  Alkies,  1  Leach,  Cr.  Cas.  435. 

2  Bull.  N.  P.  229  ;  Klnnersley  v.  Orpe, 
1  Doug.  56  ;  Hastings  j;.  Blue  Hill  Turnp. 
Corp.,  9  Pick.  80.  [And  such  copies  are 
prima  facie  evidence  of  the  fact  that  the 
deed  was  signed,  sealed,  and  delivered  by 
the  authority  of  the  grantor,  that  it  was 
duly  acknowledged,  and  that  the  grantor 
was  seised  of  the  land  described  in  the 
deed.  Chamberlain  v.  Bradley,  101  Mass. 
188;  Ward  v.  Fuller,  15  Pick.  (Mass.) 
185.] 

8  Milford  V.  Worcester,  7  Mass.  48 ; 
Commonwealtli  v.  Littlejohn,  15  Mass. 
163 ;  Sumner  v.  Sebec,  3  Greenl.  223  ; 
Wedgewood's  case,  8  Greenl.  75 ;  Jacock 
V.  Gilliam,  3  Murphy,  47 ;  Martin  v. 
Gunby,  2  H.  &  J.  248;  Jackson  d.  Bone- 
ham,  15  Johns.  226;  Jackson  v.  King,  5 
Cowen,  287 ;  Richmond  v.  Patterson,  3 
Ohio,  368. 

*  United  States  v.  Johns,  5  Dall.  415  ; 
Colson  V.  Bonzey,  6  Greenl.  474  ;  Hacker 
V.  Young,  6  N.  H.  95;  Coolidge  v.  N. 
York  Firemen's  Ins.  Co.,  14  Johns.  308 ; 
Catlett  V.  Pacific  Ins.  Co.,  1  Wend.  651. 

s  Saxton  v.  Nimms,  14  Mass.  320,  321 ; 
Thayer  v.  Stearns,  1  Pick.  309;  Taylor  v. 
Henry,  2  Pick.  401  ;  Denning  v.  Roome, 
6  Wend.  651;  Dudley  v.  Grayson,  6 
Monroe,  ^59  ;  Bishop  v.  Cone,  3  N.  H. 
513.  [The  clerk  of  a  city  or  town  is  the 
proper  certifying  oflBcer  to  authenticate 
copies  of  the  votes,  ordinances,  and  by- 
laws thereof;  and  such  copies  are  admis- 
fiible  as  prima  facie  evidence,  when  pur- 
porting to  be  duly  attested,  without  any 
verification  of  the  clerk's  signature.  Com- 
monwealth V.  Chase,  6  Gush.  248.     See 


also  People  v.  Minck,  7  Smith  (N.  Y.), 
539  1 

6  Gresley  on  Evid.  115  [ante,  §  482]. 
In  some  of  the  United  States,  ofiice- 
copies  are  made  admissible  by  statute. 
In  Georgia,  the  courts  are  expressly  em- 
powered to  require  the  production  of  the 
originals,  in  their  discretion.  Hotchk. 
Dig.  p.  590.  In  South  Carolina,  it  ha8 
been  enacted,  that  no  foreign  testimonial, 
probate,  certificate,  &c.,  under  the  seal 
of  any  court,  notary,  or  magistrate,  shall 
be  received  in  evidence,  unless  it  shall 
appear  that  the  like  evidence  from  this 
State  is  receivable  in  the  courts  of  the 
foreign  State.  Statutes  at  Large,  vol.  v. 
p.  45.  [See  Pittsfield,  &c.  P.  R.  Co.  v. 
Harrison,  16  111.  81;  Raymond  v.  Long- 
worth,  4  McLean,  481.  Duly  authenti- 
cated notarial  copies  of  instruments,  tho 
originals  of  which  the  party  has  not  the 
power  to  produce,  by  reason  of  the  laws 
of  the  country  where  they  were  executed, 
are  admissible  as  secondary  evidence. 
Bowman  v.  Sanborn,  5  Foster  (N.  H.), 
87.  The  official  record  of  the  town  clerk 
is  conclusive  as  to  the  votes  of  the  town, 
and  cannot  be  contradicted  or  explained 
by  oral  proof.  The  People  v.  Zeyst,  23 
N.  Y.  App.  140;  ante,  §  480,  n.  But 
maps  and  surveys  are  not  evidence  in 
themselves,  unless  from  having  acquired 
authority  by  lapse  of  time  and  acquies- 
cence.    Johnston  v.  Jones,  1  Black,  209.] 

7  Doe  V.  Bray,  8  B.  &  C.  813  ;  Walker 
V.  Wingfield,  18  Ves.  443.  A  certificate 
that  a  certain  fact  appears  of  record  n 
not  sufficient.  The  officer  must  certify  a 
transcript  of  the  entire  record  relating  to 
the  matter.      Owen  v,  Boyle,  3  Shepl 


610 


LAW   OF  EVIDENCE. 


[PAET  m. 


diiced  they  are  received  as  evidence,  without  further  attestation. 
But  they  must  be  accompanied  by  proof  that  they  come  from  the 
proper  repository}  Where  the  proof  is  by  a  copy,  an  examined 
copy,  duly  made  and  sworn  to  by  any  competent  witness,  is 
always  admissible.^  Whether  a  copy  certified  by  the  oJBQcer  hav- 
ing legal  custody  of  the  book  or  document,  he  not  being  specially 
appointed  by  law  to  furnish  copies,  is  admissible,  has  been 
doubted ;  but  though  there  are  decisions  against  the  admissi- 
bility, yet  the  weight  of  authority  seems  to  have  established  the 
rule,  that  a  copy  given  by  a  public  officer,  whose  duty  it  is  to 
keep  the  original,  ought  to  be  received  in  evidence.^ 


147.  And  this  is  sufficient.  Farr  v. 
Swan,  2  Barr,  245.  [So  a  certificate  that 
there  is  no  fraud  is  not  evidence.  Storer 
V.  Ellis,  6  Ind.  152;  Cross  v.  Mill  Co.,  17 
Id.  54.     And  see  pout,  §§  498,  513,  n.] 

'  1  1  Stark.  Evid.  202;  Atkins  v.  Hut- 
ton,  2  Anstr.  387 ;  Armstrong  v.  Hewett, 
4  Price,  216;  Pulley  v.  Hilton,  12  Price, 
625;  Swinnerton  v.  Marquis  of  Stafford, 
3  Taunt.  Ul  ;  Baillie  v.  Jackson,  17  Eng. 
L.  &  Eq.  131  [United  States  v.  Castro, 
24  How.  346].  See  supra,  §  142,  as  to  the 
nature  of  the  repository  required. 

2  [Whitehouse  v.  Bickford,  9  Foster, 
471.] 

3  United  States  v.  Percheman,  7  Pe- 
ters, 51,  85  [A.  D.  1833],  per  Mam 
Curiam  ;  Oakes  v.  Hill,  14  Pick.  442, 
448;  Abhott  on  Shipping,  p.  63,  n.  1 
(Story's  ed.) ;  United  States  v.  Johns,  4 
I)all.  412,  415;  Judice  v.  Chre'tien,  3 
Kob.  (La.)  15;  Wells  v.  Compton,  Id.  171 
[Warner  v.  Hardy,  6  Md.  525].  In  ac- 
cordance with  the  principle  of  this  rule 
is  the  statute  of  the  United  States  of 
March  27,  1804  (3  LL.  U.  S.  621,  c.  409 
[56],  Bioren's  ed.)  [2  U.  S.  Stats,  at 
Large  (L.  &  B.'s  edition),  298],  by  which 
it  is  enacted,  that  "all  records  and  exem- 
plifications of  offlce-books,  which  are  or 
may  be  kept  in  any  public  office  of  any 
State,  not  appertaining  to  a  court,  shall  be 
proved  or  admitted  in  any  other  court  or 
office  in  any  otlier  State,  by  the  attesta- 
tion of  the  keeper  of  the  said  records  or 
books,  and  tlie  seal  of  his  office  thereunto 
annexed,  if  there  be  a  seal,  together  with 
a  certificate  of  tlie  presiding  justice  of  the 
court  (if  tlie  county  or  district,  as  the  case 
may  bo,  in  wliich  such  office  is  or  may  be 
kept ;  orof  tiie Governor,  the  Secretary  of 
State,  tiicCh!\ncellor,ortlie  Keeperof  the 
Great  Seal  of  tlie  State,  that  the  said  attes- 
tation is  in  due  form,  and  by  the  proper 
officer ;  and  the  said  certificate,  if  given 
by  the  presiding  justice  of  a  court,  shall 


be  further  authenticated  by  the  clerk  or 
prothonotary  of  the  said  court,  who  shall 
certify,  under  his  hand  and  the  seal  of  his 
office,  that  the  said  presiding  justice  is 
duly  commissioned  and  qualified  ;  or  if 
the  said  certificate  be  given  by  the  Gov- 
ernor, the  Secretary  of  State,  the  Chan- 
cellor, or  Keeper  of  the  Great  Seal,  it  shall 
be  under  the  great  seal  of  the  State  in 
which  the  said  certificate  is  made.  And 
the  said  records  and  exemplifications, 
authenticated  as  aforesaid,  shall  have 
sucii  faith  and  credit  given  to  them  in 
every  court  and  office  within  the  United 
States,  as  they  have  by  law  or  usage  in 
the  courts  or  offices  of  the  State  from 
whence  the  same  are  or  shall  be  taken." 
By  another  section  this  provision  is  ex- 
tended to  the  records  and  ])ublic  books, 
&c.,  of  all  the  Territories  of  the  United 
States.  The  earlier  American  author- 
ities, opposed  to  tlie  rule  in  the  text,  are 
in  accordance  with  the  English  rule. 
2  Phil.  Evid.  130-134  Where  the  law 
does  not  require  or  authorize  an  instru- 
ment or  matter  to  be  recorded,  a  copy  of 
the  record  of  it  is  not  admissible  in  evi- 
dence. Fitler  v.  SiiotwoU,  7  Watts  & 
Serg.  14;  Brown  v.  Hicks,  1  Pike,  232; 
Haile  v.  Palmer,  5  Mo.  403.  [See  also 
Runk  V.  Ten  Eyck,  4  Zabr.  (N.  J.)  756; 
State  V.  Cake,  Id.  516.  Copies  of  deeds 
from  the  authorized  registry,  proof  of 
tiie  originals  as  well  as  of  the  registry. 
Curry  v.  Raymond,  28  Penn.  St.  144.  See 
Morton  v.  Webster,  2  Allen,  352.  But 
where  the  party  is  entitled  to  tiie  custody 
of  the  original  deed,  it  must  be  produced, 
or  its  absence  accounted  for.  Williams 
V.  Wetherbee,  2  Aikens,  329  ;  Ord  v.  Mc- 
Kee,  5  Cal.  515.  And  where  the  deed  is 
found  duly  engrossed  upon  the  registry, 
a  copy  is  good  evidence  of  the  deed,  al- 
thougli  the  record  is  not  certified  by  the 
proper  recording  officer.  Booge  v.  Par- 
sons. 2  Vt.  456.    A  copy  of  a  copy  of  a 


CHAP.  IV.] 


PUBLIC   DOCUlVrENTS. 


541 


§  486.  Foreign  laws.  In  regard  to  foreign  laws,  the  established 
doctrine  now  is,  that  no  court  takes  judicial  notice  of  the  laws  of 
a  foreign  country,  but  they  must  be  proved  as  facts.  And  the 
better  opinion  seems  to  be,  that  tliis  proof  must  be  made  to  the 
court,  rather  than  to  the  jury.  "  For,"  observes  Mr.  Justice 
Story,  "  all  matters  of  law  are  properly  referable  to  the  court,  and 
the  object  of  the  proof  of  foreign  laws  is  to  enable  the  court  to 
instruct  the  jury  what,  in  point  of  law,  is  the  result  of  the  foreign 
law  to  be  applied  to  the  matters  in  controversy  before  them. 
The  court  are,  therefore,  to  decide  what  is  the  proper  evidence  of 
the  laws  of  a  foreign  country ;  and  when  evidence  is  given  of 
those  laws,  the  court  are  to  judge  of  their  applicability,  when 
proved,  to  the  case  in  hand."  ^ 

§  487.  Same  subject.  "  Generally  speaking,  authenticated 
copies  of  the  written  laws,  or  of  other  public  instruments  of  a 
foreign  government,  are  expected  to  be  produced.  For  it  is  not 
to  be  presumed,  that  any  civilized  nation  will  refuse  to  give  such 
copies,  duly  authenticated,  which  are  usual  and  necessary,  for 
the  purpose  of  administering  justice  in  other  countries.  It  can- 
not be  presumed,  that  an  application  to  a  foreign  government  to 
authenticate  its  own  edict  or  law  will  be  refused ;  but  the  fact  of 
such  a  refusal  must,  if  relied  on,  be  proved.  But  if  such  refusal 
is  proved,  then  inferior  proofs  may  be  admissible. ^     Where  our 


muster-roll  is  not  evidence  to  show  that  a 
man  enrolled  therein  is  a  United  States 
soldier.     Orman  v.  Riley,  15  Cal.  48.] 

i  Story  on  Confl.  of  Laws,  §  638,  and 
cases  there  cited  [Pickard  v.  Bailey,  6 
Foster,  152.  That,  in  some  cases,  the 
question  is  one  of  fact  for  a  jury,  see 
Kedf.  Ed.  Story,  Confl.  of  Laws,  §  688  a  ; 
Wilde,  J.,  in  Holnian  v.  King,  7  Met. 
384,  388.  In  a  recent  EngUsh  case, 
M'Corraick  v.  Garnett,  5  De  G.  M.  &.  G. 
278,  it  was  decided,  that  a  question  of 
foreign  law,  being  one  of  fact,  must  be  de- 
cided in  each  cause  upon  evidence  ad- 
duced in  tiiat  particular  cause,  and  not 
by  a  decision,  or  upon  evidence  adduced, 
in  another  cause,  although  similarly  cir- 
cumstanced.   And  see  also  post,  §  502,  n.]. 

2  Church  V.  Hubbart,  2  Cranch,  237, 
238.  It  is  now  settled  in  England,  upon 
great  consideration,  that  a  foreign  written 
law  may  be  proved  by  parol  evidence  of  a 
witness  learned  in  the  law  of  that  country ; 
without  first  attempting  to  obtain  a  copy 
of  the  law  itself.  Baron  de  Bode  v.  Re- 
ginara,  10  Jur.  217.    In  this  case,  a  learned 


French  advocate  stated,  on  his  cross- 
examination,  that  the  feudal  law,  which 
had  prevailed  in  Alsace,  was  abolislied  by 
a  generi\l  decree  of  the  National  Assem- 
bly of  France,  on  the  4th  of  August,  1789. 
Being  asked  whether  he  had  read  that 
decree  in  the  books  of  the  law,  in  the 
course  of  his  study  of  tlie  law,  he  replied 
tliat  he  had  ;  and  tiiat  it  was  part  of  the 
history  of  the  law,  which  he  learnt  when 
studying  the  law.  He  was  then  asked  as 
to  the  contents  of  that  decree ;  and  the 
admissibility  ofthis  question  was  the  point 
in  judgment.  On  this  point,  Lord  Den- 
man,  C.  J.,  said :  "  The  obje(!tion  to  the 
question,  in  whatever  mode  put,  is,  that  it 
asks  the  witness  to  give  the  contents  of  a 
written  instrument,  the  decree  of  1789, 
contrary  to  a  general  rule,  that  such  evi- 
dence cannot  be  given  without  the  produc- 
tion of  the  instrument,  or  accounting  for 
it.  In  my  opinion,  however,  that  ques- 
tion is  within  another  general  rule,  that 
the  opinion  of  skilful  and  scientific  persons 
is  to  be  received  on  subjects  with  wliich 
they  are  conversant.     I  think  that  credit 


542 


LAW   OF  EVIDENCE. 


[PAKT  m. 


own  government  has  promulgated  any  foreign  law,  or  ordinance  of 
a  public  nature,  as  authentic,  that  may,  of  itself,  be  sufficient 
evidence  of  the  actual  existence  and  terms  of  such  law  or  or- 
dinance." ^ 

§  488.  Same  subject.  "  In  general,  foreign  laws  are  required 
to  be  verified  by  the  sanction  of  an  oath,  unless  they  can  be  veri- 
fied by  some  high  authority,  such  as  the  law  respects,  not  less 
tlian  it  respects  the  oath  of  an  individual.^     The  usual  mode  of 


must  be  given  to  the  opinion  of  legal  men, 
who  are  bound  to  know  the  law  of  tlie 
country  in  which  they  practise,  and  that 
we  must  take  from  tlieni  tlie  account  of  it, 
whether  it  be  tlie  unwritten  law,  which 
they  may  collect  from  practice,  or  the 
written  laws,  which  tliey  are  also  bound 
to  know.  I  apprehend  that  the  evidence 
sought  for  would  not  set  forth  generally 
the  recollection  of  the  witness  of  tlie  con- 
tents of  the  instrument,  but  his  opinion  as 
to  the  effect  of  the  particular  law.  The 
instrument  itself  might  frequently  mis- 
lead, and  it  might  be  necessary  that  the 
knowledge  of  the  practitioner  should  be 
called  in,  to  show  tiiat  the  sense  in  wliicli 
the  instrument  would  be  naturally  con- 
strued by  a  foreigner  is  not  its  true  legal 
sense.  It  appears  to  me  that  the  distinc- 
tion between  this  decree  and  treaties,  ma- 
norial customs,  or  acts  of  common  council, 
is,  that,  with  regard  to  them,  there  is  no 
profession  of  men  whose  duty  it  is  to  make 
them  their  study,  and  tiiat  there  is,  there- 
fore, no  person  to  whom  we  could  prop- 
erly resort,  as  skilfully  conversant  with 
them.  The  cases  which  have  been  re- 
ferred to  excite  much  less  doubt  in  my 
mind  than  that  which  I  know  to  be  enter- 
tained by  one  of  my  learned  brothers,  to 
whose  opinion  we  are  in  the  habit  of  pay- 
ing more  respect  than  to  many  of  those 
cases  whicii  are  most  familiarly  quoted  in 
Westminster  Hall."  He  then  cited  and 
commented  on  tlie  cases  of  Boehtlinck  v. 
Schneider,  3  Esp.  58 ;  Clegg  v.  Levy,  3 
Campb.  166  ;  Miller  v.  Hcinrick,  4  Campb. 
155;  Lacon  v.  Higgins,  3  Stark.  178; 
Gen.  Picton's  case,  3  Howell,  St.  Tr.  491 ; 
and  Middleton  v.  Janverin,2  Hagg.  Cons. 
437  ;  and  concluded  as  follows  :  "  But 
1  look  to  the  imj)ortance  of  this  question 
in  a  more  extensive  point  of  view.  Books 
of  authority  must  certainly  be  resorted 
to,  upon  questions  of  foreign  law.  Potiiier, 
for  instance,  states  the  law  of  France,  and 
he  states  it  asarisingoutof  an  ordonnance 
made  in  such  a  year,  anil  he  gives  his 
account  of  tiiat  ordonnance  ;  and  are  we 
to  say  that  that  would  not  be  taken  as  evi- 
dence of  tlie  law  of  France,  because  it  is 
aa  account  of  the  contents  of  a  written 


document  ?  Suppose  a  question  to  arise 
suddenly  in  one  of  our  courts  upon  tlie 
state  of  the  English  law,  could  a  state- 
ment in  Biackstone's  Commentaries,  as  to 
what  the  law  is  on  the  subject,  and  when 
it  was  altered  to  what  it  now  is,  be  re- 
fused? And  it  seems  to  me  that  the  cir- 
cumstance of  tlie  question  having  refer- 
ence to  tlie  period  at  wiiicii  a  statute 
passed,  makes  no  difference.  I  attach  the 
same  credit  to  the  witness  giving  his  ac- 
count of  a  branch  of  the  French  law,  as  I 
should  to  a  bookwhicli  he  might  accredit 
as  a  book  of  autliority  upon  the  law  of 
France.  I  find  no  authority  directly  op- 
posed to  the  admissibility  of  this  evidence, 
except  some  expressions  mucli  stronger 
than  tlie  cases  warranted  or  required  ;  and 
I  find  some  decisions  which  go  the  whole 
length  in  favor  of  its  admissibility  ;  for  I 
see  no  distinction  between  absolute  proof 
by  a  direct  copy  of  the  law  itself,  and  the 
evidence  which  is  now  tendered;  and  I 
think  that  the  general  principle  to  which 
I  have  referred  establishes  the  admissi- 
bility of  it."  See  10  Jur.  218,  219;  s.  c. 
8  Ad.  &  El.  208.  Williams,  J.,  and  Col- 
eridge, J.,  concurred  in  this  opinion. 
Patteson,  J.,  dissent iente.  See  also  Cocks 
V.  Purday,  2  C.  &  K.  269. 

1  Story  on  Cimfl.  of  Laws,  §  640  ;  Tal- 
bot V.  Seeman,  1  Cranch,  38.  The  acts 
of  state  of  a  foreign  government  can  only 
be  proved  by  copies  of  such  acts,  properly 
authenticated.  Richardson  v.  Anderson, 
1  Campb.  65,  n.  (a). 

2  Church  V.  Hubbart,  2  Cranch,  237  ; 
Brackett  v.  Norton,  4  Conn.  517  ;  Hemp- 
stead V.  Reed,  6  Conn.  480 ;  Dyer  v. 
Smith,  12  Conn.  384.  But  the  court  may 
proceed  on  its  own  knowledge  of  foreign 
laws,  without  the  aid  of  other  proof  ;  and 
its  judgment  will  not  be  reversed  for  that 
cause,  unless  it  should  appear  that  the 
court  was  mistaken  as  to  those  laws.  The 
State  V.  Rood,  12  Vt.  396.  [Proof  of 
the  written  law  of  a  foreign  country  may 
be  made  by  some  copy  of  the  law  which 
the  witness  can  swear  was  recognized  as 
authoritative  in  the  foreign  country,  and 
which  was  in  force  at  the  time.  Spauld 
ing  V.  Vincent,  24  Vt.  501.] 


CHAP.  IV.] 


PUBLIC  DOCUMENTS. 


543 


authenticating  foreign  laws  (as  it  is  of  authenticating  foreign 
judgments),  is  by  an  exemplification  of  a  copy,  under  the  great 
seal  of  a  State ;  or  by  a  copy  proved  to  be  a  true  copy,  by  a  wit- 
ness who  has  examined  and  compared  it  with  the  original ;  or  by 
the  certificate  of  an  officer  properly  authorized  by  law  to  give  the 
copy  ;  which  certificate  must  itself  also  be  duly  authenticated.^ 
But  foreign  unwritten  laws,  customs,  and  usages  may  be  proved, 
and  indeed  must  ordinarily  be  proved,  by  parol  evidence.  The 
usual  course  is  to  make  such  proof  by  the  testimony  of  competent 
witnesses,  instructed  in  the  laws,  customs,  and  usages,  under 
oath.2  Sometimes,  however,  certificates  of  persons  in  liigh  author- 
ity have  been  allowed  as  evidence,  without  other  proof."  ^ 


1  Church  V.  Hubbart,  2  Cranch,  238 ; 
Packard  v.  Hill,  2  Wend.  411 ;  Lincoln  v. 
Battelle,  6  Wcud.  475. 

2  Church  V.  Hubbart,  2  Cranch,  237  ; 
Dalrymple  v.  Dalrymple,  2  Hagg.  App'x, 
pp.  15-144  ;  Brush  v.  Wilkins,  4  Johns. 
Ch.  520  ;  Mostyn  r.  Fabrigas,  Cowp.  174. 
It  is  not  necessary  that  the  witness  should 
be  of  the  legal  profession.  Reg.  v.  Dent, 
1  Car.  &  Kirw.  97.  [But  this  last  case 
has  been  overruled,  and  it  is  now  held, 
that  only  a  professional  man  belonging 
to  the  country  whose  laws  are  in  question, 
or  one  holding  an  official  opinion,  and 
therefore  presumed  to  have  knowledge,  is 
competent  as  an  expert  in  such  cases. 
Sussex  Peerage  case,  11  C.  &  F.  134.  A 
Roman  Catholic  bishop  is  competent  on 
questions  of  the  matrimonial  law  of 
Rome,  Ibid. ;  and  a  French  vice-consul 
was  permitted  by  Ld.Tenterden  to  testify 
as  to  tiie  law  of  France,  Lacon  v.  Hig- 
gins,  3  Stark.  178.  But  the  law  of  one 
country  cannot  be  proved  by  one  who 
has  learned  of  it  only  in  a  university  of 
anotlier,  Bristow  v.  Sequeville,  5  Ex. 
275;  nor  by  a  mere  merchant,  however 
ample  may  be  his  knowledge,  Sussex  Peer- 
age case,  supra.]  But  whether  a  woman 
is  admissible  as  peritus,  qucere.  Reg.  v. 
Povey,  14  Eng.  Law  &  Eq.  549 ;  17  Jur. 
119.  And  see  VVilcocks  v.  Phillips,  Wall. 
Jr.  47.  In  Michigan,  the  unwritten  law 
of  foreign  States  may  be  proved  by  books 
of  reports  of  cases  adjudged  in  their 
courts.  Rev.  Stat.  1846,  c.  102,  §  79. 
So,  in  Connecticut,  Rev.  Stat.  1849,  tit.  1, 
§  132.  And  in  Massachusetts,  Rev.  Stat. 
183«,  c.  94,  §  60.  And  in  Maine,  Rev. 
Stat.  1840,  c.  133,  §  48.  And  in  Alabama, 
Inge  V.  Murphy,  10  Ala.  885. 

3  Story  on  Confl.  of  Laws,  §§  641, 
642;  Id.  §  629-640.  In  re  Dormay,  3 
Hagg.  Eccl.  767,  769;  Rex  i;.  Picton,  30 


Howell's  State  Trials,  515-673;  The 
Diana,  1  Dods.  95,  101,  102.  A  copy  of 
the  code  of  laws  of  a  foreign  nation, 
printed  by  order  of  the  foreign  govern- 
ment, it  seems,  is  not  admissible  evidence 
of  those  laws;  but  they  must  be  proved, 
as  stated  in  the  text.  Chanoine  i-.  Fow- 
ler, 3  Wend.  173  ;  Hill  v.  Packard,  5  Wend. 
375,  384,  389.  But  see  United  States  v. 
Glass  Ware,  4  Law  Reporter,  36,  where 
Betts,  J.,  held  the  contrary  ;  the  printed 
book  having  been  purchased  of  the 
Queen's  printer.  See  also  Farmers'  and 
Mechanics'  Bank  v.  Ward,  Id.  37,  s.  p. 
[Charlotte  v.  Chouteau,  33  Mo.  194. 
A  copy  of  the  Code  Civile,  purporting  to 
have  been  printed  at  the  royal  press  in 
Paris,  and  to  be  presented  by  the  keeper 
of  the  seals  to  the  Supreme  Court  of  the 
United  States,  is  admissible  in  evidence. 
Ennis  v.  Smith,  14  How.  (U.  S.)  400. 
So  is  a  copy  which  a  witness  can  swear 
is  recognized  as  authoritative  in  the  for- 
eign country.  Spaulding  v.  Vincent,  24 
Vt.  501].  In  regard  to  ihe  effect  of  foreign 
laws,  it  is  generally  agreed  that  they  are 
to  govern  everywhere,  so  far  as  may 
concern  the  validity  and  interpretation 
of  all  contracts  made  under  or  with  re- 
spect to  them  ;  where  the  contract  is  not 
contrary  to  the  laws  or  policy  of  the 
country  in  which  the  remedy  is  sought. 
An  exception  has  been  admitted  in  the 
case  of  foreign  revenue  laws  ;  of  which,  it 
is  said,  the  courts  will  not  take  notice, 
and  which  will  not  be  allowed  to  invali- 
date a  contract  made  for  the  express  pur- 
pose of  violating  them.  This  exception 
has  obtained  place  upon  the  supposed 
authority  of  Lord  Hardwicke,  in  Boucher 
V.  Lawson,  Cas.  temp.  Hardw.  89,  194, 
and  of  Lord  Mansfield,  in  Planche  v. 
Fletcher,  1  Doug.  252.  But  in  the  former 
of  these  cases,  which  was  that  of  a  ship- 


544 


LAW   OF  EVIDENCE. 


[part  m. 


§  489.  Inter-State  relations.  The  relations  of  the  United  States 
to  each  other,  m  regard  to  all  matters  not  surrendered  to  the  gen- 
eral government  by  the  national  constitution,  are  those  of  foreign 
States  in  close  friendship,  each  being  sovereign  and  independent.^ 
Upon  strict  principles  of  evidence,  therefore,  the  laws  and  public 
documents  of  one  State  can  be  proved  in  the  courts  of  another 
only  as  other  foreign  laws.  And,  accordingly,  in  some  of  the 
States,  such  proof  has  been  required.^  But  the  courts  of  other 
States,  and  the  Supreme  Court  of  the  United  States,  being  of 
opinion  that  the  connection,  intercourse,  and  constitutional  ties 
which  bind  together  these  several  States  require  some  relaxation 
of  the  strictness  of  this  rule,  have  accordingly  held  that  a  printed 
volume,  purporting  on  the  face  of  it  to  contain  the  laws  of  a  sister 
State,  is  admissible  as  prima  facie  evidence,  to  prove  the  statute 
laws  of  that  State.^     The  act  of  Congress  ^  respecting  the  exem- 


ment  of  gold  in  Portugal,  to  be  delivered 
in  London,  though  the  exportation  of 
gold  was  forbidden  by  the  laws  of  Portu- 
gal, the  judgment  was  right  on  two 
grounds :  first,  because  the  foreign  law 
was  contrary  to  tlie  policy  and  interest 
of  England,  wlicre  bullion  was  very  much 
needed  at  that  time ;  and,  secondly,  be- 
cause tlie  contract  was  to  be  performeil 
in  England ;  and  the  rule  is,  that  the  law 
of  the  place  of  perfonnunce  is  to  govern. 
The  latter  of  these  cases  was  an  action 
on  a  policy  of  insurance,  on  a  voyage  to 
Nantz,  with  liberty  to  touch  at  Ostend; 
the  vessel  being  a  Swedish  bottom,  and 
the  voyage  being  plainly  intended  to 
introduce  into  France  P^nglish  goods,  on 
which  duties  were  high,  as  Dutcli  goods, 
on  which  much  lower  duties  werecharged. 
Here,  too,  the  French  law  of  high  coun- 
tervailing duties  was  contrary  to  British 
interest  and  policy  ;  and.  moreover,  the 
French  ministry  were  understood  to  con- 
nive at  this  course  of  trade,  the  supply 
of  such  goods  beingnecessary  for  French 
consumption.  Both  these  cases,  there- 
fore, may  well  stand  on  the  ground  of 
tlie  admitted  qualification  of  the  general 
rule;  and  the  brief  general  observations 
of  tiiose  learned  judges,  if  correctly  re- 
porte<l,  may  be  regarded  as  obiler  dicta. 
But  it  siiould  be  remembered,  that  the 
language  of  tlie  learned  judges  seems  to 
import  nothing  more  than  that  courts 
will  not  take  notice  of  foreign  revenue 
laws ;  and  such  seems  to  have  been  the 


view  of  Lord  Denman,  in  the  recent 
case  of  Spence  v.  Chodwick,  11  Jur.  874, 
where  he  said :  "  We  are  not  bound  to 
take  notice  of  the  revenue  laws  of  a  for- 
eign country ;  but  if  we  are  informed  of 
them,  that  is  another  case."  And  see  10 
Ad.  &  El.  N.  8.  517.  The  exception  al- 
luded to  was  tacitly  disapproved  by  Lord 
Kenyon,  in  Waymell  v.  Reed,  5  T.  R. 
599,  and  is  explicitly  condemned,  as  not 
founded  in  legal  or  moral  principle,  by 
the  best  modern  jurists.  See  Vattel,  b. 
2,  c.  5,  §  64;  Id.  c.  6,  §  72;  Pothier  on 
Assurance.n.  58;  Marshall  on  Lis.  pp.  59- 
61  (2d  ed.) ;  1  Chitty  on  Comm.  &  Manuf. 
pp.  83,  84 ;  3  Kent,  Comm.  260,  267  ; 
Story,  Confl.  Laws,  §  257 ;  Story  on 
Bills,  §  136  ;  Story  on  Agency,  §§  197, 
343,  n.  (2d  ed.). 

1  Infra,  §  504. 

2  Bfackett  v.  Norton,  4  Conn.  517,  521 ; 
Hempstead  v.  Reed,  6  Conn.  480  ;  Pack- 
ard V.  Hill,  2  Wend.  411. 

8  Young  V.  Bank  of  Alexandria,  4 
Cranch,  384,  388;  Thomson  v.  Musser, 
1  Dall.  458,463;  Biddis  i;.  James,  6  Binn. 
321,  327;  Muller  v.  Morris,  2  Barr,  85; 
Raynham  v.  Canton,  3  Pick.  293,  296; 
Kean  v.  Rice,  12  S.  &  R.  203;  The  State 
V.  Stade,  1  D.  Chipm.  303;  Comparet  o. 
Jernegan,  5  Blackf.  375;  Taylor  v.  Bank 
of  Illinois,  7  Monroe,  585;  Taylor  v.  Bank 
of  Alexandria,  5  Leigh,  471  ;  Clarke  v. 
Bank  of  Mississippi,  5  Eng.  516;  Allen  v. 
Watson,  2  Hill,  319;  Hale  v.  Host,  Pen- 
nington, 691  [Emery  v.  Berry,  8  Foster, 


Stat.  March  27, 1804,  cited  supra,  §  485. 


CHAP.  IV.]  PUBLIC   DOCUlVrENTS.  545 

plification  of  public  office  books  is  not  understood  to  exclude 
any  other  modes  of  authentication  which  the  courts  may  deem  it 
proper  to  admit.^  And,  in  regard  to  the  laws  of  the  States,  Con- 
gress has  provided,^  under  the  power  vested  for  that  purpose  by 
the  constitution,  that  the  acts  of  the  legislatures  of  the  seveial 
States  shall  be  authenticated  by  having  the  seal  of  their  respec- 
tive States  affixed  thereto  ;  but  this  method,  as  in  the  case  of 
public  books  just  mentioned,  is  not  regarded  as  exclusive  of  any 
other  which  the  States  may  respectively  adopt.^  Under  this  stat- 
ute it  is  held,  that  the  seal  of  the  State  is  a  sufficient  authentica- 
tion, without  the  attestation  of  any  officer  or  any  other  proof ; 
and  it  Mall  be  presumed  prima  facie  that  the  seal  was  affixed  by 
the  proper  officer.* 

§  490.  Relations  of  States  to  United  States.  The  reciprocal  rela- 
tions bettveen  the  national  government  atid  the  several  States,  com- 
prising the  United  States,  are  not  foreign  but  domestic.  Hence, 
the  courts  of  the  United  States  take  judicial  notice  of  all  the 
public  laws  of  the  respective  States  whenever  they  are  called 
upon  to  consider  and  apply  them.  And,  in  like  manner,  the 
courts  of  the  several  States  take  judicial  notice  of  all  public  acts 
of  Congress,  including  those  which  relate  exclusively  to  the  Dis- 
trict of  Columbia,  without  any  formal  proof.^  But  private  stat- 
utes must  be  proved  in  the  ordinary  mode.^ 

§  491.    Admissibility  and  effect  of  public  documents.    We  are  next 

473].     But  see  Van  Buskirk  v.  Mulock,  contains  on  its  title-page  the  words  "  Bj 

3  Harrison,  185,  contra.     In  some  States,  authority,"  it  thereby  purports  to  have 

the  rule  stated  in  the  te^ft  has  been  ex-  been  published  by  the  authority  of  the 

pressly  enacted.      See   Connecticut,  Rev.  State.      Merrifield  v.  Bobbins,  8  Gray, 

Stat.  1849,  tit.  1,  §  131;   Michigan,  Rev.  150.J 

Stat.   1846,    c.    102,    §    78;    Alississippi,  ^  See  cases  cited  supra,  n.  (2). 

Hutchins.  Dig.  1848,  c.  60,  art.  10;    Mk-  2  Stat.    May   26,  1790,   1    LL.    U.    S. 

souri,  Rev.  Stat.  1845,  c.  59,  §§  4-6;    Wis-  c.  38  [11],  p.  102  (Bioren's  ed.)   [1   U.  S. 

consin,  Rev.  Stat.  1849,  c.  98,  §  54;  Maine,  Stat,  at  Large  (L.  &  B.'s  ed.),  122]. 

Rev.  Stat.  1840,  c.  133,  §  47  ;  Massachu-  3  Lothrop  v.  Blake,  3  Barr,  483. 

sells.  Rev.  Stat.  1836,  c.  94,  §  59;   New  *  United  States  v.  Amedy,  11  Wheat. 

York,  Stat.  1848,  c.  312;  Florida,  Thomps.  392;  United  States  v.  Johns,  4  Dall.  412; 

Dig.  p.  342;  Kean  i'.  Rice,  12  S.  &  R.  203;  The  State  v.  Carr,  5  N.  H.  367.    [It  must 

North  Carolina,  Rev.  Stat.  1837,  c.  44,  §  4.  be  the  seal  of  the  State  ;   the  seal  of  the 

The  common  law  of  a  sister  State  may  Secretary  of  State  is  not  sufficient,  as  it 

be  shown  by  the   books   of  reports   of  cannot   be   considered   the   seal   of    the 

adjudged  cases,  accredited  in  that  State.  State.     Sisk  v.  Woodruff,  15  111.  15.] 

Inge  V.  Murphy,  10  Ala.  885.     [A  book  ^  Owens  v.  Hull,  9  Peters,  607;  Hinde 

purporting  to  contain  the  laws  of  another  v.  Vattier,  6  Peters,  308;  Young  v.  Bank 

State   is   not  admissible  in  evidence  in  of  Alexandria,  4  Cranch,  384,  388;  Canal 

Texas,  unless  such  book  also  purport  to  Co.  v.  Railroad  Co.,  4  G.  &  J.  1,  63. 

have  been  published  by  the  authority  of  •*  Leland    v.     Wilkinson,    6    Peters, 

such  other  State.     Martin  v.  Payne,  11  317. 
Texas,  292.      And  if  a  volume  of  laws 
voi.  I.                                                36 


546  LAW   OF  EVIDENCE.  [PAET  m. 

to  consider  the  admissihility  and  effect  of  the  public  documents  we 
have  been  speaking  of,  as  instruments  of  evidence.  And  here  it 
may  be  generally  observed,  that  to  render  such  documents,  when 
properly  authenticated,  admissible  in  evidence,  their  contents 
must  be  pertinent  to  the  issue.  It  is  also  necessary  that  the 
document  be  made  by  the  person  whose  duty  it  was  to  make  it., 
and  that  the  matter  it  contains  be  such  as  belonged  to  his  prov- 
ince, or  came  within  his  official  cognizance  and  observation. 
Documents  having  these  requisites  are,  in  general,  admissible  to 
prove,  either  prima  facie  or  conclusively,  the  facts  they  recite. 
Thus,  where  certain  public  statutes  recited  that  great  outrages 
had  been  committed  in  a  certain  part  of  the  country,  and  a  pvib- 
lic  proclamation  was  issued,  with  similar  recitals,  and  offering  a 
reward  for  the  discovery  and  conviction  of  the  perpetrators,  these 
were  'held  admissible  and  sufficient  evidence  of  the  existence  of 
those  outrages,  to  support  the  averments  to  that  effect  in  an 
information  for  a  libel  on  the  government  in  relation  to  them.i 
So,  a  recital  of  a  state  of  war,  in  the  preamble  of  a  public  statute, 
is  good  evidence  of  its  existence,  and  it  will  be  taken  notice  of 
without  proof ;  and  this,  whether  the  nation  be  or  be  not  a  party 
to  the  war.2  So,  also,  legislative  resolutions  are  evidence  of  the 
public  matters  which  they  recite.^  The  journals,  also,  of  either 
House  are  the  proper  evidence  of  the  action  of  that  House  upon  all 
matters  before  it.*  The  diplomatic  correspondence,  communicated 
by  the  President  to  Congress,  is  sufficient  evidence  of  the  acts  of 
foreign  governments  and  functionaries  therein  recited.^  A  for- 
eign declaration  of  war  is  sufficient  proof  of  the  day  when  the 
state  of  war  commenced.^  Certified  copies,  under  the  hand  and 
seal  of  the  Secretary  of  State,  of  the  letters  of  a  public  agent  resi- 
dent abroad,  and  of  the  official  order  of  a  foreign  colonial  governor 
concerning  the  sale  and  disposal  of  a  cargo  of  merchandise,  have 
been  held  admissible  evidence  of  those  transactions.'  How  far 
diplomatic  correspondence  may  go  to  establish  the  facts  recited 

1  Rex  V.  Sutton,  4  M.  &  S.  532.  38,  51;  Talbot  v.  Seeman,  1  Crancli,  1, 

2  Rex  V.  De  Berenger,  3  M.  &  S.  67,     37,  38. 

69.      See  also   Brazen   Nose  College  v.  ^  Thelluson  v.  Gosling,  4  Esp.  266  ; 

Bisliop  of  Salisbury,  4  Taunt.  831.  Bradley  v.  Arthur,  4  B.  &  C.  292,  304. 

8  Rex  V.  Francklin,   17  Howell's  St.  See  also  Foster,  Disc.  1,  c.  2,  §  12,  that 

Tr.  637.  public  notoriety  is  sufficient  evidence  of 

*  Jones  t;.  Randall,  Cowp.  17 ;  Root  v.  the  existence  of  war. 
King,  7  Cowen,  613;  Spangler  u.  Jacoby,  ">  Bingham  v.  Cabot,  3  Dall.  19,  23, 

14  III.  2ny.  39-41. 

6  Radcliff  V.  United  Ins.  Co.,  7  Jolins. 


CHAP.  IV.]  PUBLIC  DOCHMEiNTS.  547 

therein  does  not  clearly  appear  ;  but  it  is  agreed  to  be  generally 
admissible  in  all  cases,  and  to  be  sufficient  evidence,  "whenever 
the  facts  recited  come  in  collaterally,  or  by  way  of  introductory 
averment,  and  are  not  the  principal  point  in  issue  before  the 
jury.i 

§  492.  Government  gazette.  The  government  gazette  is  admis- 
sible and  sufficient  evidence  of  such  acts  of  the  executive,  or  of 
the  government,  as  are  usually  announced  to  the  public  through 
that  channel,  such  as  proclamations,^  and  the  like.  For,  besidet 
the  motives  of  self-interest  and  official  duty  which  bind  the 
publisher  to  accuracy,  it  is  to  be  remembered,  that  intentionally 
to  publish  any  thing  as  emanating  from  public  authority,  with 
knowledge  that  it  did  not  so  emanate,  would  be  a  misdemeanor.^ 
But  in  regard  to  other  acts  of  public  functionaries,  having  no 
relation  to  the  affairs  of  government,  the  gazette  is  not  admissible 
evidence.* 

§  493.  Official  registers.  In  regard  to  official  registers^  we  have 
already  stated  ^  the  principles  on  which  these  books  are  entitled 
to  credit ;  to  which  it  is  only  necessary  to  add,  that  where  the 
books  possess  all  the  requisites  there  mentioned,  they  are  admis- 
sible as  competent  evidence  of  the  facts  they  contain.  But  it  is 
to  be  remembered  that  they  are  not,  in  general,  evidence  of  any 
facts  not  required  to  be  recorded  in  them,^  and  which  did  not 
occur  in  the  presence  of  the  registering  officer.  Thus,  a  parish 
register  is  evidence  only  of  the  time  of  the  marriage,  and  of  its 
celebration  de  facto  ;  for  these  are  the  only  facts  necessarily  within 
the  knowledge  of  the  party  making  the  entry.'^  So,  a  register  of 
baptism,  taken  by  itself,  is  evidence  only  of  that  fact ;  though  if 
the  child  were  proved  aliunde  to  have  then  been  very  young,  it 
might  afford  presumptive  evidence  that  it  was  born  in  the  same 
parish.^  Neither  is  the  mention  of  the  child's  age  in  the  register 
of  christenings  proof  of  the  day  of  his  birth,  to  support  a  plea  of 

1  EadclifE  v.  United  Ins.  Co.,  7  Johns.  »  Supra,  §§  483-485. 

51,  per  Kent,  C.  J.  6  Fitler  v.  Shotwell,  7   S.   &  R.  14  ; 

2  Rex  V.  Holt,  5  T.  R.  436,  443 ;  At-  Brown  v.  Hicks,  1  Pike,  232 ;  Haile  v. 
tornev-General  v.  Theakstone,  8  Price,     Palmer,  5  Mo.  403;  supra,  §  485. 

89;  supra,  §  480,  and  cases  cited  in  note  ;  '^  Doe  v.  Barnes,  1  M.  &  Rob.  386,  389. 

Gen.  Picton's  case,  30  Howell's  St.  Tr.  As  to  the  kind  of  books  which  may  be 

493.  read  as  registers  of  marriage,  see  2  Phil. 

8  2  Phil.  Evid.  108.  Evid.  112-114. 

*  Rex  V.  Holt,  5  T.  R.  443,  per  Ld.  »  Rex  v.  North  Petherton,  5  B.  &  C. 

Kenyon  [Brandred  v.  Del  Hoyo.  20  N.  508 ;  Clark  v.  Trinity  Church,  5  Watts  & 

J.  L.  328].  Serg.  266 


548 


LAW   OF  EVIDENCB. 


[part  nr. 


infancy.^  In  all  these  and  similar  eases  the  register  is  no  proof  of 
the  identity  of  the  parties  there  named  with  the  parties  in  con- 
troversy ;  but  the  fact  of  identity  must  be  established  by  other 
evidence.^  It  is  also  necessary,  in  all  these  cases,  that  the  regis- 
ter be  one  which  the  law  requires  should  be  kept,  and  that  it  be 
kept  in  the  manner  required  by  law.^  Thus,  also,  the  registers 
kept  at  the  navy  office  are  admissible  to  prove  the  death  of  a 
sailor,  and  the  time  when  it  occurred,*  as  well  as  to  show  to  what 
ship  he  belonged,  and  the  amount  of  wages  due  to  him.^  The 
prison  calendar  is  evidence  to  prove  the  date  and  fact  of  the  com- 
mitment and  discharge  of  a  prisoner.^  The  books  of  assessment 
of  public  taxes  are  admissible  to  prove  the  assessment  of  the  taxes 
upon  the  individuals,  and  for  the  property  therein  mentioned^ 
The  books  of  municipal  corporations  are  evidence  of  the  elections 
of  their  officers,  and  of  other  corporate  acts  there  recorded.^  The 
books  of  private  corporations  are  admissible  for  similar  purposes 
between  members  of  the  corporation,  for  as  between  them  tlie 
books  are  of  the  nature  of  public  books.^  And  all  the  members 
of  a  company  are  chargeable  with  knowledge  of  the.  entries  made 
on  their  books  by  their  agent,  in  the  course  of  his  business,  and 


1  Burghart  v.  Angerstein,  6  C.  &  P. 
690.  See  also  Rex  v.  Clapham,  4  C.  & 
P.  29 ;  Huet  v.  Le  Mesurier,  1  Cox,  275 ; 
Childress  v.  Cutter,  16  Mo.  24. 

2  Birt  V.  Barlow,  1  Doug.  170;  Bain 
V.  Mason,  1  C.  &  P.  202,  and  n. ;  Wedge- 
wood's  case,  8  Greenl.  75.  [As  to  proof 
of  identity,  see  ante,  §  38,  n.] 

3  See  tlie  cases  cited  supra,  §  484, 
n.  (10);  Newliam  v.  Baithby,  1  Phillim. 
315.  Tlierefore  the  books  of  the  Fleet 
and  of  a  Wesleyan  chapel  have  been 
rejected.  Keed  v.  Passer,  1  Esp.  213 ; 
Wliittack  r.  Waters,  4  C.  &  B.  375.  It  is 
said  that  a  copy  of  a  register  of  baptism, 
kept  in  the  island  of  Guernsey,  is  not 
admissible;  for  wiiich  Iluet  v.  Le  Mesu- 
rier, 1  Cox,  275,  is  cited.  But  tiie  report 
of  that  case  is  short  and  obscure ;  and, 
for  aught  ajjpearing  to  the  contrary,  the 
register  was  rejected  only  as  not  coni])e- 
tent  to  prove  the  nr/e  of  the  person.  It  is 
also  said,  on  tlie  authority  of  Leader  v. 
Barry,  I  Esp.  35."),  that  a  copy  of  a  regis- 
ter of  a  foreign  chapel  is  not  evidence  to 
prove  a  marriage.  But  tliis  point,  also, 
is  very  briefly  reported,  in  three  lines ; 
and  it  does  not  appear  but  that  the 
ground  of  tlie  rejection  of  the  register 
was  tiiat  it  was  not  authorized  or  required 
to  be  kept  by  the  laws  of  France,  where 


the  marriage  was  celebrated;  namely,  in 
the  Swedish  ambassador's  chapel,  in 
Paris.  And  such,  probably  enough,  was 
the  fact.  Subsequently  an  examined 
copy  of  a  register  of  marriages  in  Barba- 
does  has  been  admitted.  Good  v.  Good, 
1  Curt.  755.  In  the  United  States,  an 
autbentieated  ?opy  of  a  foreign  register, 
legally  kept,  is  admissible  in  evidence. 
Kingsvon  v.  Lesley,  10  S.  &  R.  383,  389. 

*  Wallace  v.  Cook,  5  Esp.  117;  Barber 
V.  Holmes,  3  Esp.  190. 

5  Rex  I'.  Fitzgerald,  1  Leach,  Cr.  Gas. 
24;  Rex  t;.  Riiodes,  Id.  29.  [In  the 
Maria  Das  Donas,  lighthouse  journals 
were  received  as  evidence.  32  L.  J. 
Adm.  163.] 

«  Salte  V.  Thomas,  3  B.  &  P.  188;  Rex 
V.  Aides,  1  Leach,  Cr.  Gas.  435. 

^  Doe  V.  Seaton,  2  Ad.  &  El.  178;  Doe 
r.  Arkwright,  Id.  182,  n. ;  Rex  v.  King,  2 
T.  R.  234;  Ronkendorff  v.  Taylor,  4 
Peters,  349,  360.  Such  books  are  also 
prima  facie  evidence  of  domicile.  Doe  v. 
Cartwright,  Ry.  &  M.  62  ;  1  C.  &  P. 
218. 

8  Rex  V.  Martin,  2  Campb.  100. 

9  Marriage  v.  Lawrence,  3  B.  &  Aid. 
144 ;  Gibbon's  case,  17  HowcH's  St.  Tr. 
810. 


CHAP.  IV.]  PUBLIC  DOCUilEXTS.  540 

with  the  true  meaning  of  those  entries,  as  understood  by  him.^ 
But  the  books  cannot,  in  general,  be  adduced  by  the  corporation 
in  support  of  its  own  claims  against  a  stranger.^ 

§  494.  Ship's  register.  The  registry  of  a  ship  is  not  of  the  na- 
ture of  the  public  or  official  registers  now  under  consideration, 
the  entry  not  being  of  any  transaction  of  which  the  public  officer 
M'ho  makes  the  entry  is  conusant.  Nor  is  it  a  document  required 
by  the  law  of  nations,  as  expressive  of  the  ship's  national  char* 
acter.  The  registry  acts  are  considered  as  institutions  purely 
local  and  municipal,  for  purposes  of  public  policy.  The  register, 
therefore,  is  not  of  itself  evidence  of  property,  except  so  far  as  it 
is  confirmed  by  some  auxiliary  circumstance,  showing  that  it  was 
made  by  the  authority  or  assent  of  the  person  named  in  it,  and  who 
is  sought  to  be  charged  as  owner.  Without  such  connecting  proof, 
the  register  has  been  held  not  to  be  even  prima  facie  evidence, 
to  charge  a  person  as  owner ;  and  even  with  such  proof,  it  is  not 
conclusive  evidence  of  ownership  ;  for  an  equitable  title  in  one 
person  may  well  consist  with  the  documentary  title  at  the  cus- 
tom-house in  another.  Where  the  question  of  ownership  is 
merely  incidental,  the  register  alone  has  been  deemed  sufficient 
prima  facie  evidence.  But  in  favor  of  the  person  claiming  as 
owner  it  is  no  evidence  at  all,  being  nothing  more  than  his  own 
declaration.^ 

§  495.  Ship's  log-book.  A  ship's  log-hook,  where  it  is  required 
by  law  to  be  kept,  is  an  official  register,  so  far  as  regards  the 
transactions  required  by  law  to  be  entered  in  it ;  but  no  further. 
Thus,  the  act  of  Congress  *  provides,  that  if  any  seaman  who  has 
signed  the  shipping  articles  shall  absent  himself  from  the  ship 
without  leave,  an  entry  of  that  fact  shall  be  made  in  the  log- 
book, and  the  seaman  will  be  liable  to  be  deemed  guilty  of  de- 
sertion. But  of  this  fact  the  log-book,  though  an  indispensable 
document,  in  making  out  the  proof  of  desertion,  in  order  to  incur 
a  forfeiture  of  wages,  is  never  conclusive,  but  only  prima  facie 

1  Allen  t;.  Coit,  6  Hill  (N.Y.),  318.  474;    Abbott    on    Shippincr,   pp.    63-66 

2  London  i'.  Lynn,  1  H.  BI.  214,  n.  (c) ;  (Story's  ed.  and  notes)  ;  Tinkler  v.  Wal- 
Commonwealth  'v.  Woelper,  3  S.  &  R.  pole,  14  East,  226;  Mclverv.  Humble,  16 
29;  Highland  Turnpike  Co.  i;.  McKean,  East,  169;  Eraser  v.  Hopkins,  2  Taunt. 
10  Johns.  154.  5;  Jones  v.  Pitcher,  3  Stewart  &  Porter, 

8  3  Kent,  Comm.  149,  150;   Weston  135. 
r.   Penniman,   1    Mason,  306,    318,  per         *  Stat.  1790,  c.  29,  §  5  [1  U.  S.  Stat,  at 

Story,  J. ;  Bixby  v.  The  Franklin  Ins.  Co.,  Large  (L.  &  B.'s  ed.),  133J. 
8  Pick. 86;  Colson  y.  Bonzey,  6  Greeul. 


550  LAW   OF  E\Ta)ENCE.  [PAET  KT. 

evidence,  open  to  ,explanation,  and  to  rebutting  testimony.  Indeed, 
it  is  in  no  sense  -per  se  evidence,  except  in  the  cases  provided 
for  by  statute ;  and  therefore  it  cannot  be  received  in  evi- 
dence, in  favor  of  the  persons  concerned  in  making  it,  or  others, 
except  by  force  of  a  statute  making  it  so  ;  though  it  may  be 
used  against  any  persons  to  whom  it  may  be  brought  home,  as 
concerned  either  in  writing  or  directing  what  should  be  contained 
therein.^ 

§  496.  Requisites  of  official  character.  To  entitle  a  book  to  the 
character  of  an  official  register,  it  is  not  necessary  that  it  be  re- 
quired by  an  express  statute  to  be  kept ;  nor  that  the  nature  of 
the  office  should  render  the  book  indispensable.  It  is  sufficient, 
that  it  be  directed  hy  the  projjer  authority  to  be  kept,  and  that  it 
be  kept  according  to  such  directions.  Thus,  a  book  kept  by 
the  secretary  of  bankrupts,  by  order  of  the  Lord  Chancellor, 
was  held  admissible  evidence  of  the  allowance  of  a  certificate  of 
bankruptcy .2  Terriers  seem  to  be  admitted,  partly  on  the  same 
principle  ;  as  well  as  upon  the  ground,  that  they  are  admissions 
by  persons  who  stood  in  privity  with  the  parties,  between  whom 
they  are  sought  to  be  used.^ 

§  497.  Historical  works.  Under  this  head  may  be  mentioned 
hooks  and  chronicles  of  public  history,  as  partaking  in  some  degree 
of  the  nature  of  public  documents,  and  being  entitled  on  the  same 
principles  to  a  great  degree  of  credit.  Any  approved  public  and 
general  history,  therefore,  is  admissible  to  prove  ancient  facts  of 
a  public  nature,  and  the  general  usages  and  customs  of  the  coun- 
try.*    But  in  regard  to   matters   not   of  a  public  and  general 

1  Abbott  on   Shipping,  p.  468,  n.  (1)  3  By  the  ecclesiastical  canons,  an  in- 

(Story's  ed.);  Orne  t>.  Townsend,  4  Ma-  quiry  is  directed  to  be  made,  from  time 

son,  544;    Cloutman  y.  Tunison,  1  Sum-  to  time,  of  the  temporal  riglits  of  the 

nor,    373;    United    States    v.    Gibert,   2  clergyman  in    every  parish,  and    to   be 

Sumner,    19,  78 ;    The    Sociedade  Feliz,  returned  into  the  registry  of  tlie  bishop. 

1     W.    Rub.    303,   311    [The    Hercules,  This   return    is   denominated   a    terrier. 

Sprague's  Decisions,  534|.  Cowel,   Int.  verb.   Termr,  scil.  cataloqns 

^  Henry  v.  Leigh,  3  Campb.  499,  501.  terrarum,  Burrill,  Law  Diet.  verb.  Terrier. 
[So  the  records  of  the  alcalde  are  evi-  [See  also  o«<e,  §  485.] 
(lence  of  the  acts  of  that  officer.  Kyburg  <  Bull.  N.  P.  248,  249;  Morris  v. 
V.  Perkins,  6  Cal.  674.  Whenever  a  Harmer,  7  Peters,  654 ;  Case  of  Warren 
written  record  of  the  transactions  of  a  Hastings,  referred  to  in  30  Howell's  St.  Tr. 
public  officer  in  his  office  is  a  convenient  492;  Phil.  &  Am.  on  F:vid.  p.  (50(5;  Xeal 
and  appropriate  mode  of  discliarging  the  v.  Fry,  cited  1  Salk.  281 ;  Lord  Bridge- 
duties  of  tiie  office,  it  is  his  duty  to  keep  water's  case,  cited  Skin.  15  [Wagner's 
that  record,  wlietlier  required  by  law  so  case,  61  Maine,  178].  The  statements  of 
to  do  or  not;  and  such  record  is  a  public  the  chroniclers.  Stow  and  Sir  W.  Dug- 
record,  behmging  to  the  public,  and  not  dale,  were  held  inadmissible  as  evidence 
to  the  officer.  Coleman  u.  Com.,  25  Gratt.  of  the  fact,  tiiat  a  person  took  his  seat 
(Va.)  8G5.]  by  special  summons  to  Parliament  in  the 


CHAP.  IV.] 


PUBLIC  DOCUMENTS. 


551 


nature,  such  as  the  custom  of  a  particular  town,  a  descent,  the 
nature  of  a  particuhir  abbey,  the  boundaries  of  a  country,  and 
the  hke,  they  are  not  admissible.-^ 

§  498.  Certificates.  In  regard  to  certificates  given  hy  persons 
in  official  station,  the  general  rule  is,  that  the  law  never  allows  a 
certificate  of  a  mere  matter  of  fact,  not  coupled  with  any  matter 
of  law,  to  be  admitted  as  evidence.^  If  the  person  was  bound  to 
record  the  fact,  then  the  proper  evidence  is  a  copy  of  the  record, 
duly  authenticated.  But  as  to  matters  which  he  was  not  bound  to 
record,  his  certificate,  being  extra-official,  is  merely  the  statement 
of  a  private  person,  and  will  therefore  be  rejected.^  So,  where 
an  officer's  certificate  is  made  evidence  of  certain  facts,  he  cannot 
extend  its  effect  to  other  facts,  by  stating  those  also  in  the  certifi- 
cate ;  but  such  parts  of  the  certificate  will  be  suppressed.*  The 
same  rules  are  applied  to  an  ofiicer's  return.^ 


reign  of  Henry  VIII.  The  Vaux  Peer- 
age case,  5  Clark  &  Fin.  538.  In  Iowa, 
books  of  liistor}',  science,  and  art,  and 
published  maps  and  charts,  made  by  per- 
sons indifferent  between  the  parties,  are 
presumptive  evidence  of  facts  of  general 
interest.  Code  of  1851,  §  -2492.  [There 
is  great  want  of  symmetry  in  the  law, 
in  regard  to  tiie  admission  of  books  of 
art  and  science  to  be  read  before  the 
court  and  jury,  in  order  to  establish  the 
laws  or  rules  of  a  particular  art  or  pro- 
fession. Redf.  on  Wills,  part  1,  §  15, 
pi.  17-19,  pp.  146,  147.  The  rule  seems 
well  settled,  that  such  books  are  not  to 
be  read  before  the  jury,  either  as  evi- 
dence or  argument.  Commonwealth  v. 
Wilson,  1  Gray,  337  ;  Washburn  v.  Cud- 
dihy,  8  Gray,  430;  Ashworth  v.  Kit- 
tridge,  12  Cush.  193.  But  courts  often 
manifest  the  consciousness  of  the  want 
of  principle  upon  which  the  rule  e.xclud- 
ing  such  books  rests,  by  quoting  the  very 
same  books  in  banc  which  they  were  de- 
ciding were  rightfully  rejected  at  the 
trial,  and  thus  declaring  a  rule  of  law, 
pertaining  to  the  veterinary  art  or  pro- 
fession, or  any  other  subject  upon  the 
authority  of  these  same  books,  which,  in 
the  same  breath,  they  declare  to  be  so 
unreliable  as  not  to  be  evidence,  either 
of  the  laws  or  the  facts  involved  in  the 
same  identical  point  upon  which  the 
court  decided  solely  upon  the  evidence 
of  these  same  books.  This  goes  upon  the 
ground,  that  reading,  or  hearing  read, 
such  books  will  be  entirely  safe  and 
proper  while  sitting  in  banc,  but  not 
equally  so  to  the  same  judges  while  sit- 
ting with  a  jury  to  determine,  among 


others,  the  very  same  questions  then 
before  the  full  court.  This  seems  to  give 
some  countenance  to  the  complaints  of 
the  learned  author  of  the  "Jurisprudence 
of  Insanity,"  in  his  last  edition,  upon  this 
point,  of  the  admissibility  of  medical 
books  to  prove  tiie  laws  of  the  medical 
profession.  Washburn  v.  Cuddihy,  8 
Gray,  430.] 

'  Stainer  v.  Droitwich,  1  Salk.  281 ; 
s.  c.  Skin.  623 ;  Piercy's  case.  The. 
Jones,  164;  Evans  v.  Getting,  6  C.  &  P. 
586,  and  n.  [But  Appleton's  Cyclopaedia 
was  rejected  as  evidence  that  a  certain 
island  is  known  amongst  merchants  and 
insurers  as  a  guano  island.  AVhiton  v. 
Alb.  City  Ins.  Co.,  109  Mass.  24.] 

2  Willes,  549,  550,  per  Willes,  Ld. 
Ch.  J. 

3  Oakes  v.  Hill,  14  Pick.  442,  448; 
Wolfe  V.  Washburn,  6  Cowen,  2(31 ;  Jack- 
son V.  Miller,  Id.  751 ;  Governor  v.  Mc- 
Affee,  2  Uev.  15, 18 ;  United  States  v. 
Buforp,  3  Peters,  12,  29  [Childress  v. 
Cutter,  16  Miss.  24.  A  certificate  from 
the  United  States  commissioner  of  pat- 
ents, that  diligent  search  has  been  made, 
and  tliat  it  does  not  appear  that  a  certain 
patent  has  been  issued,  is  not  evidence. 
Bullock  V.  Wallingford,  55  N.  H.  619 ; 
Harrison  v.  South  Scituate,  115  Mass. 
336;  ante,  §  485,  n.]. 

■«  Johnson  v.  Hocker,  1  Dal.  406,  407 ; 
Governor  v.  Bell,  3  Murph.  331;  Gov- 
ernor V.  Jeffreys,  1  Hawks,  297 ;  Stewart 
r.  Alison,  6  S.  &  R.  324,  329;  Newman  v. 
Doe,  4  How.  522  [Brown  v.  The  Indepen- 
dence, Crabbe,  54]. 

8  Cator  V.  Stokes,  1  M.  &  S.  599 ;  Ar- 
nold V.  Tourtelot,  13  Pick.  172.    A  no* 


552  LAW  OF  EVIDENCE.  [PAET  HI. 

tary's  certificate  that  no  note  of  a  certain  even  between  other  parties.  Hayward 
description  was  protested  by  him  is  inad-  v.  Bath,  38  N.  H.  179.  But,  in  general, 
missible.  Excliange,  &c.  Co.  of  New  such  matters  are  regarded  so  far  in  the 
Orleans  v.  Boyee,  3  Rob.  (La.)  307  nature  of  private  transactions,  as  not  to 
[Bicltnell  v.  Hill,  33  Maine,  297;  ante,  be  evidence,  except  between  the  imme- 
§  485,  n.  The  return  of  public  ofl5cers  diate  parties,  and  for  the  particular  pur- 
appointed  to  investigate  a  matter  of  fact  pose  of  the  inquiry.  Wheeler  v.  Fra- 
has  sometimes  been  held  to  be  evidence,  mingham,  12  Cush.  387]. 


CHAP,  v.]  RECORDS  AND  JUDICIAL  WRITINGS.  553 


CHAPTER  V. 

RECORDS  AND  JUDICIAL  WRITINGS. 

§  499.  Records  and  judicial  writings.  The  next  class  of  writ- 
ten evidence  consists  of  Records  and  Judicial  Writings.  And 
here,  also,  as  in  the  case  of  Public  Documents,  we  shall  consider, 
first,  the  mode  of  proving  them  ;  and,  secondly,  their  admissibility 
and  effect. 

§  500.  statutes.  The  case  of  statutes^  which  are  records,  has 
already  been  mentioned  under  the  head  of  legislative  acts,  to 
which  they  seem  more  properly  to  belong,  the  term  record  being 
generally  taken  in  the  more  restricted  sense,  with  reference  to 
judicial  tribunals.  It  will  only  be  observed,  in  this  place,  that, 
though  the  courts  will  take  notice  of  all  public  statutes  without 
proof,  yet  private  statutes  must  be  proved,  like  any  other  legisla- 
tive documents ;  namely,  by  an  exemplification  under  the  great 
seal,  or  by  an  examined  copy,  or  by  a  copy  printed  by  authority.^ 

§  501.  Proof  of  records.  As  to  the  proofs  of  records,  this  is 
done  either  by  mere  production  of  the  records,  without  more,  or 
by  a  copy .2  Copies  of  record  are,  (1)  exemplifications  ;  (2) 
copies  made  by  an  authorized  officer ;  (3)  sworn  copies.  Exem- 
plifications are  either,  first,  under  the  great  seal ;  or,  secondly, 
under  the  seal  of  the  particular  court  where  the  record  remains.^ 
When  a  record  is  the  gist  of  the  issue,  if  it  is  not  in  the  same 
court,  it  should  be  proved  by  an  exemplification.*  By  the  course 
of  the  common  law,  where  an  exemplification  under  the  great 

1  [See  supra,  §§  480,  481.]  226.    Nothing  but  a  record  can  be  exeni- 

2  [Writing  done  witli  a  pencil  is  not  plified  in  this  manner.  3  Inst.  173.  [The 
admissible  in  public  records,  nor  on  pa-  agreement  of  counsel  is  not  evidence 
pers  drawn  to  be  used  in  legal  proceed-  that  the  court  below  made  a  certain  rul- 
ings which  must  become  public  records,  ing.  It  must  be  shown  by  the  records  of 
Meserve  v.  Hicks,  4  Foster,  295.  The  the  court  making  the  ruling.  Flemraing 
original   papers,  the   record  or  a  copy,  v.  Clark,  12  Allen  (Mass.),  110.| 

are   all   admissible   evidence.      State   v.  *  [The  rule  allowing  a  copy  of  a  rec- 

Bartlett,  47  Maine,  396.]  ord  to  be  used  in  evidence  is  founded  on 

3  Bull.  N.  P.  227,  228.  An  exemplifi-  convenience ;  and  when  the  original  rec- 
cation  under  the  great  seal  is  said  to  be  ord  itself  is  produced,  it  is  the  highest 
of  itself  a  record  of  the  greatest  validity,  evidence,  and  is  admissible.  Gray  v. 
1  Gilb.  Evid.  by  Lofft,  p.  19;  Bull.  N.  P.  Davis,  27  Coon.  447.] 


554 


LAW   OF  EVIDENCE. 


[part  in. 


seal  is  requisite,  the  record  may  be  removed  into  the  Court  of 
Clianeery,  by  a  certiorari,  for  that  is  the  centre  of  all  the  courts, 
and  there  the  great  seal  is  kept.  But  in  the  United  States,  the 
great  seal  being  usually  if  not  always  kept  by  the  Secretary  of 
State,  a  different  course  prevails  ;  and  an  exemplified  copy,  under 
the  seal  of  the  court,  is  usually  admitted,  even  upon  an  issue  of 
nul  tiel  record,  as  sufficient  evidence.^  When  the  record  is  not 
the  gist  cf  the  issue,  the  last-mentioned  kind  of  exemplification  is 
ahvays  sufficient  proof  of  the  record  at  common  law.^ 

§  502.  Same  subject.  The  record  itself  is  produced  only  when 
the  cause  is  in  the  same  court,  whose  record  it  is  ;  or,  when  it  is 
the  subject  of  proceedings  in  a  superior  court.  And  in  the  latter 
case,  although  it  may  by  the  common  law  be  obtained  through 
the  Court  of  Chancery,  yet  a  certiorari  may  also  be  issued  from  a 
superior  court  of  common  law,  to  an  inferior  tribunal,  for  the 
same  purpose,  whenever  the  tenor  only  of  the  record  will  suffice  ; 
for  in  such  cases  nothing  is  returned  but  the  tenor,  that  is,  a 
literal  transcript  of  the  record,  under  the  seal  of  the  court ;  and 
this  is  sufficient  to  countervail  the  plea  of  nul  tiel  record.^  Where 
the  record  is  put  in  issue  in  a  superior  court  of  concurrent  juris- 
diction and  authority,  it  is  proved  by  an  exemplification  out  of 
chancery,  being  obtained  and  brought  thither  by  a  certiorari 
issued  out  of  chancery,  and  transmitted  thence  by  mittimus.'^ 


1  Vail  V.  Smith,  4  Cowen,  71.  See 
also  Pepoon  v.  Jenkins,  2  Johns.  Cas. 
118;  8.  c.  Colem.  &  Cain.  Cas.  136.  In 
some  of  the  States,  copies  of  record  of 
the  courts  of  the  same  State,  attested  by 
the  clerk,  have,  either  by  immemorial 
usage,  or  by  early  statutes,  been  received 
as  sufficient  in  all  ca.^es.  Vance  v.  Rear- 
don,  2  Nott  &  McCord,  29'J;  Ladd  v. 
Blunt,  4  Mass.  402.  Wliether  tlie  seal 
of  the  court  to  such  copies  is  necessary 
in  Massarhtisetis,  qiicere;  and  see  Com- 
monwealth V.  Phillips,  11  Pick.  30.  [In 
Commonwealth  v.  Downing,  4  Gray,  29, 
80,  it  is  decided  that  a  copy  of  a  record 
of  a  justice  of  the  peace  need  not  bear  a 
seal ;  the  court  saying,  "  it  need  not  bear 
a  seal,  nor  is  it  the  practice  to  affix 
one."l 

2  1  Gilb.  Evid.  26  [Tillotson  v.  War- 
ner, 3  Grav,  574,677]. 

3  Woodcraft  v.  Kinaston,  2  Atk.  817, 
318 ;  1  Tidd's  Pr.  SUB ;  Butcher  &  Aid- 
worth's  case,  Cro.  El.  821.  Where  a 
domestic  record  is  put  in  issue  by  the 
plea,  the  question  is  tried  by  the  court, 
notwithstanding  it  is  a  question  of  fact. 


And  the  judgment  of  a  court  of  record  of 
a  sister  State  in  the  Union  is  considered, 
for  this  purpose,  as  a  domestic  judgment. 
Hall  V.  Williams,  6  Pick.  227  ;  Carter  v. 
Wilson,  1  Dev.  &  Bat.  362.  [So  is  the 
judgment  of  a  circuit  court  of  tlie  United 
States  considered  a  domestic  judgment. 
Williams  v.  Wilkes,  14  Penn.  St.  228.J 
But  if  it  is  a  foreign  record,  the  issue 
is  tried  by  the  jury.  The  State  v. 
Isham,  3  Hawks,  185;  Adams  v.  Betz,  1 
Watts,  425;  Baldwin  v.  Hale,  17  Johns. 
272.  Tiie  reason  is,  that  in  the  former 
case  the  judges  can  themselves  have  an 
inspection  of  the  very  record.  But  in  the 
latter,  it  can  only  be  proved  by  a  copy, 
the  veracity  of  which  is  a  mere  fact, 
within  the  province  of  the  jury.  And  see 
Collins  V.  Alatthews,  5  East,  473.  [So  a 
foreign  law  is,  in  some  cases  at  least, 
a  question  of  fact  for  the  jury.  Ante, 
§  486.]  In  New  York,  the  question  of  fact, 
in  every  case,  is  now,  by  statute,  referred 
to  the  jury.  Troter  v.  Mills,  6  Wend. 
612;  2  Kev.  Stat.  507,  §  4  (3d  ed.). 
*  1  Tidd's  Pr.  398. 


CnAP.  v.]  EECORDS   AND  JUDICIAL  WEITINGS.  655 

§  503.  Same  subject.  In  proving  a  record  by  a  co'py  under  seal^ 
it  is  to  be  remembered,  that  the  courts  recognize  without  proof 
the  seal  of  State,  and  the  seals  of  the  superior  courts  of  justice, 
and  of  all  courts  established  by  public  statutes.^  And  by  parity 
of  reason  it  would  seem  that  no  extraneous  proof  ought  to  be 
required  of  the  seal  of  any  department  of  State,  or  public  office 
established  by  law,  and  required  or  known  to  have  a  seal.^  And 
here  it  may  be  observed,  that  copies  of  records  and  judicial  pro- 
ceedings, under  seal,  are  deemed  of  higher  credit  than  sworn 
copies,  as  having  passed  under  a  more  exact  critical  examina- 
tion.^ 

§  504.  Records  of  the  courts  of  the  several  States.  In  regard  to 
the  several  States  composing  the  United  States,  it  has  already  been 
seen,  that  though  they  are  sovereign  and  independent,  in  all 
things  not  surrendered  to  the  national  government  by  the  consti- 
tution, and,  therefore,  on  general  principles,  are  liable  to  be 
treated  b}^  each  other  in  all  other  respects  as  foreign  States,  yet 
their  mutual  relations  are  rather  those  of  domestic  independence, 
than  of  foreign  alienation.'*  It  is  accordingly  provided  in  the  con- 
stitution, that  "  full  faith  and  credit  shall  be  given,  in  each  State, 
to  the  public  acts,  records,  and  judicial  proceedings  of  every  other 
State.  And  the  Congress  may,  by  general  laws,  prescribe  the 
manner  in  which  such  acts,  records,  and  proceedings  shall  be 
proved,  and  the  effect  thereof."  ^  Under  this  provision  it  has 
been  enacted,  that  "  the  records  and  judicial  proceedings  of  the 
courts  of  any  State  shall  be  proved  or  admitted,  in  any  other 
court  within  the  United  States,  by  the  attestation  of  the  clerk 
and  the  seal  of  the  court  annexed,  if  there  be  a  seal,  together 
with  a  certificate  of  the  judge,  chief  justice,  or  presiding  magis- 
trate, as  the  case  may  be,  that  the  said  attestation  is  in  due  form. 
And  the  said  records  and  judicial  proceedings,  authenticated  as 
aforesaid,  shall  have  such  faith  and  credit  given  to  them,  in 
every  court  within  the  United  States,  as  they  have  by  law  or 
usage  in  the  courts  of  the  State  from  whence  said  records  are  or 

I  Olive  V.  Guin,  2  Sid.  145,  146,  per     14  Mass.  222 ;   Judge,  &c.  v.  Briggs,  3 


Witlierington,  C.  B. ;  1  Gilb.  Evid.  19 
12  Vin.  Abr.  132,  133,  tit.  Evid.  A,  b,  69 
Delafield   v.  Hand,   3  Johns.   310,  314 


N.  H.  309. 
2  Supra,  §  6. 
8  2  Phil.  Evid.  1.30 ;  Bull.  N.  P.  227. 


Den   V.  Vreelandt,  2   Halst.  555.     The         *  Mills    v.   Duryee,   7    Cranch,  481  ; 

seals  of    counties   palatine   and  of  the  Hampton  v.  McConnel,  3  Wheat.  234 ; 

ecclesiastical  courts  are  judicially  known,  supra,  §  489. 

on  the  same  general  principle.    See  also,  *  Const  U.  S.  art.  iv.  §  1. 

as  to  probate  courts,  Chase  v.  Hathaway, 


556  LAW   OF  EVIDENCE.  [PART  HI. 

shall  be  taken."  ^  By  a  subsequent  act,  these  provisions  are 
extended  to  the  courts  of  all  Territories  subject  to  the  jurisdic- 
tion of  the  United  States.^ 

§  505.  Proof  by  attested  copy  not  exclusive.  It  seems  to  be 
generally  agreed,  that  this  method  of  authentication,  as  in  the 
case  of  public  documents  before  mentioned,  is  not  exclusive  of 
any  other  which  the  States  may  think  proper  to  adopt.^  It  has 
also  been  held,  that  these  acts  of  Congress  do  not  extend  to  judg- 
ments in  criminal  cases,  so  as  to  render  a  witness  incompetent  in 
one  State,  who  has  been  convicted  of  an  infamous  crime  in 
another.*  The  judicial  proceedings  referred  to  in  these  acts  are 
also  generally  understood  to  be  the  proceedings  of  courts  of  gen- 
eral jurisdiction,  and  not  those  which  are  merely  of  municipal 
authority ;  for  it  is  required  that  the  copy  of  the  record  shall  be 
certified  by  the  clerk  of  the  court,  and  that  there  shall  also  be 
a  certificate  of  the  judge,  chief  justice,  or  presiding  magistrate, 
that  the  attestation  of  the  clerk  is  in  due  form.  This,  it  is  said, 
is  founded  on  the  supposition  that  the  court,  whose  proceedings 
are  to  be  thus  authenticated,  is  so  constituted  as  to  admit  of  such 
officers ;  the  law  having  wisely  left  the  records  of  magistrates, 
who  may  be  vested  with  limited  judicial  authority,  varying  in  its 
objects  and  extent  in  every  State,  to  be  governed  by  the  laws  of 
the  State  into  which  they  may  be  introduced  for  the  purpose  of 
being  carried  into  effect.^  Accordingly  it  has  been  held,  that 
the  judgments  of  justices  of  the  peace  are  not  within  the  meaning 
of  these  constitutional  and  statutory  provisions.^  But  the  pro- 
ceedings of  courts  of  chancery,  and  of  probate,  as  well  as  of  the 
courts  of  common  law,  may  be  proved  in  the  manner  directed  by 
the  statute.^ 

1  Stat.  U.  S.  May  26,  1790,  2  LL.  U.  S.  «  Warren  v.  Flagg,  2  Pick.  450,  per 
c.  38  [11],  p.  102  (Bioren's  ed.)   [1  U.  S.     Parker,  C.  J. 

Stat,  at  Large  (L.  &  B.'s  ed.),  122].  6  Warren  v.  Flagg,  2  Pick.  448  ;  Rob- 

2  Stat.  U.  S.  March  27,  1804,  3  LL.  inson  v.  Prescott,  4  N.  H.  450;  Mahurin 
U  S.  c.  409  [50],  p.  621  (Bioren's  ed.)  [2  v.  Bickford,  6  N.  H.  567;  Silver  Lake 
U.  S.  Stat,  at  Large  (L.  &  B.'s  ed.),  Bank  w.  Harding,  5  Ohio,  545;  Thomas 
298].  i;.  Robinson,  3  Wend.  267.     In  Connecticut 

8  Kean  v.  Rice,  12  S.  &  R.  203,  208  ;  and  Vermont,  it  is  held,  that  if  the  justice 

Tlie   State  v.  Stade,   1   D.  Chipm.  303;  is  bound  by  hvw  to  keep  a  record  of  iiis 

Raynliani  v.  Danton,  3  Pick.  293;  Biddis  proceedings,  they  are  witliin  the  meaning 

V.  James,  6  Binn.  321 ;  Ex  parte  Povall,  of  the  act  of  Congress.     Bissell  v.  Ed- 

8  Leigh,  816;  Pepoon  c.  Jenkins,  2. Johns,  wards,   6    Day,    363;    Starkweather    v. 

Cas.  119;  Ellmore  v.  AJills,  1  Hayw.  359;  Loomis,  2  "Vt.  573;  Blodget  v.  Jordan,  6 

gnprn,   §   489;    Rev.   Stat.  Mass.  c.   94,  Vt.  580  [Brown  v.  Edson,  23  Vt.  435]. 

§§  57,  59-61.  See  ace.  Scott  v.  Cleaveland,  3  Monroe, 

*  Commonwealth  v.  Green,  17  Mass.  62. 
615 ;  stipra,  §  370,  and  cases  there  cited.  ^  Scott  v.  Blanchard,  8  Martin,  N.  S. 


CHAP,  v.]  RECORDS   AND  JUDICIAL  WRITINGS.  557 

§  506.  Mode  of  attestation.  Under  these  provisions  it  has  been 
held,  that  the  attestation  of  the  copy  must  be  according  to  the 
form  used  in  the  State  from  which  the  record  comes  ;  and  that  it 
must  be  certified  to  be  so,  by  the  presiding  judge  of  the  same 
court,  the  certificate  of  the  clerk  to  that  effect  being  insufficient.^ 
Nor  will  it  suffice  for  the  judge  simply  to  certify  that  the  person 
who  attests  the  copy  is  the  clerk  of  the  court,  and  that  the  signa- 
ture is  in  his  handwriting.^  The  seal  of  the  court  must  be 
annexed  to  the  record  with  the  certificate  of  the  clerk,  and  not 
to  the  certificate  of  the  judge.^  If  the  court,  whose  record  is 
certified,  has  no  seal,  this  fact  should  appear,  either  in  the  certifi- 
cate of  the  clerk,  or  in  that  of  the  judge.*  And  if  the  court  itself 
is  extinct,  but  its  records  and  jurisdiction  have  been  transferred 
by  law  to  another  court,  it  seems  that  the  clerk  and  presiding 
judge  of  the  latter  tribunal  are  competent  to  make  the  requisite 
attestations.^  If  the  copy  produced  purports  to  be  a  record,  and 
not  a  mere  transcript  of  minutes  from  the  docket,  and  the  clerk 
certifies  "  that  the  foregoing  is  truly  taken  from  the  record  of  the 
proceedings  "  of  the  court,  and  this  attestation  is  certified  to  be 
in  due  form  of  law,  by  the  presiding  judge,  it  will  be  presumed 
that  the  paper  is  a  full  copy  of  the  entire  record,  and  will  be 
deemed  sufficient.^  It  has  also  been  held,  that '  it  must  appear 
from  the  judge's  certificate,  that  at  the  time  of  certifying  he  is 
the  presiding  judge  of  that  court ;  a  certificate  that  he  is  "  the 
judge  that  presided  "  at  the  time  of  the  trial,  or  that  he  is  "  the 
senior  judge  of  the  courts  of  law"  in  the  State,  being  deemed 
insufficient.''  The  clerk  also  who  certifies  the  record  must  be 
the  clerk  himself  of  the  same  court,  or  of  its  successor,  as  above 
mentioned ;  the  certificate  of  his  under-clerk,  in  his  absence,  or 


303;  Hunt  v.  Lyle,  8  Yerg.  142;  Barbour  of  the  clerk  is  in  due  form.     Shown  v. 

V.  Watts,  2  A.  K.  Marsh.  290,  293;  Bal-  Barr,  11  Ired.  296.] 

four  V.  Chew,  5  Martin,  n.  s.  517  ;  John-  ^  Turner  v.  Waddington,  3  Wash.  126. 

son  V.   Rannels,   6    Martin,   n.   s.   621  ;  And  being  thus  affixed,  and  certified  by 

Ripple  V.  Ripple,  1  Rawle,  386 ;  Craig  v.  the  clerk,  it  proves  itself.      Dunlap   ». 

Brown,  1  Peters,  C.  C.  352.  Waldo,  6  N.  H.  450. 

1  Drunimond  v.  Magruder,  9  Cranch,  *  Craig  v.  Brown,  1  Pet.  C.  C.  352; 
122;    Craig  v.  Brown,  1  Pet.  C.  C.  352.  Kirkland  o.  Smith,  2  Martin,  n.  s.  497. 
The  judge's  certificate  is  the  only  compe-  ^  Thomas  v.  Tanner,  6  Monroe,  52. 
tent   evidence   of   tliis   fact.      Smith   v.  *>  Ferguson  y.  Harwood,  7  Cranch,  408; 
Blagge,   1  Johns.   Cas.  238.     And  it  is  Edmiston  r.  Scliwartz,  13  S.  &  R.  135; 
conclusive.      Ferguson    v.    Harwood,    7  Goodman  y.  James,  2  Kob.  (La.)  297. 
Cranch,  408.  ''    Stephenson  v.  Bannister,  3  Bibb,  369; 

2  Craig  V.  Brown,  1  Pet.  C.  C.  352.  Kirkland  v.  Smith,  2  Martin,  n.  s.  497 
lit  should  also  state  that  the  attestation  [Settle  v.  Alison,  8  Geo.  201]. 


558 


LAW  OF  EVIDENCE. 


[PAPvT  in. 


of  the  clerk  of  any  other  tribunal,  office,  or  body,  being  held 
incompetent  for  this  purpose.^ 

§  507.  OfBce  copies.  An  offiee  eoipy  of  a  record  is  a  copy 
authenticated  by  an  officer  intrusted  for  that  purpose  ;  and  it  is 
admitted  in  evidence  upon  the  credit  of  the  officer  without  proof 
that  it  has  been  actually  examined.^  The  rule  on  this  subject  is, 
that  an  office  copy,  in  the  same  court,  and  in  the  same  cause,  is 
equivalent  to  the  record ;  but  in  another  court,  or  in  another 
cause  in  the  same  court,  the  copy  must  be  proved.^  But  the  lat- 
ter part  of  this  rule  is  applied  only  to  copies  made  out  by  an  offi- 
cer having  no  other  authority  to  make  them,  than  the  mere  order 
of  the  particular  court,  made  for  the  convenience  of  suitors  ;  for 
if  it  is  made  his  duty  by  law  to  furnish  copies,  they  are  admitted 
in  all  courts  under  the  same  jurisdiction.  And  we  have  already 
seen,  that  in  the  United  States  an  officer  having  the  legal  custody 
of  public  records  is,  ex  officio^  competent  to  certify  copies  of  their 
contents.* 

§  508.  Examined  copies.  The  proof  of  records,  by  an  examined 
copy^  is  by  producing  a  witness  who  has  compared  the  copy  with 
the  original,  or  with  what  the  officer  of  the  court  or  any  other 
person  read,  as  the  contents  of  the  record.  It  is  not  necessary  for 
the  persons  examining  to  exchange  papers,  and  read  them  alter- 
nately both  ways.^  But  it  should  appear  that  the  record,  from 
which  the  copy  was  taken,  was  found  in  the  proper  place  of  de- 


1  Attestation  by  an  under  clerk  is  in- 
sufficient. Samson  v.  Overton,  4  Bibb, 
400.  So,  by  late  clerk  not  now  in  office. 
Donohoo  V.  Brannon,  1  Overton,  328. 
So,  by  clerk  of  tlie  council,  in  Maryland. 
Schnertzell  v.  Young,  3  H.  &  McHen. 
502.  See  fnrtber,  Conkling's  Practice, 
p.  256 ;  1  Paine  &  Diicr's  Practice,  480, 
481.  [Tiie  authentication  of  the  record 
of  a  judjjincnt  rendered  in  another  State 
is  not  impaired  by  tlie  addition  of  a  su- 
perfluous certificate,  if  it  is  duly  accred- 
ited by  tiie  other  certificates  required  by 
law.  Younfi  v.  Chandler,  13  Bellows, 
252.  Tiie  certificate  of  tlie  deput3'-clerk 
is  not  surticicnt,  even  wjien  tlie  judge  cer- 
tifies that  it  is  in  due  form.  Morris  v. 
Patchin,  24  N.  Y.  3'J4.] 

2  2  Pliil.  Kvid.  131 ;  Bull.  N.  P.  229. 

8  Denn  c.  Fulford,  2  Burr.  1179,  per 
Ld.  Mansfield.  Wiiether,  upon  trial  at 
law  of  an  issue  out  of  cliancery,  office 
copies  of  depositions  in  tlie  same  cause 
in  chancery  are   admissible,    has    been 


doubted ;  but  the  better  opinion  is,  that 
they  are  admissible.  Highfield  v.  Peake, 
1  M.  &  Malk.  109  (1827)r  Studdy  v.  San- 
ders, 2  D.  &  My.  347  ;  Hennell  v.  Lyon,  1 
B.  &  Aid.  142 ;  contra,  Burnand  v.  Nerot, 
1  C.  &P.  578  (1824), 

*  Snpi-a,  §  485.  But  his  certificate  of 
the  substance  or  purport  of  tiie  record  is 
inadmissible.  McGuire  ?'.  Sayward,  9 
Shepl.  230.  [AVIienever  the  original  is 
evidence  in  itself,  as  a  public  record  or 
document,  its  contents  may  be  proved  by 
an  vixamined  copy.  Reed  v.  Lamb,  G  Jur. 
N.  s.  828.  Tlie  same  is  true  of  tlie  regis- 
try of  marriages  kept  in  dujilicate  by  tlie 
East  India  Company  in  London,  the  mar- 
riages being  solemnized  in  India.  Kat- 
cliff  V.  Katcliff,  5  Jur.  n.  s.  714.] 

^  Keid  r.  Margison,  1  Campb.  469; 
Gyles  V.  Ilill,  Id.  471,  n.;  Fyson  v.  Kemp, 
6  C.  &  P.  71 ;  Rolf  V.  Dart,  2  Taunt.  62; 
Hill  V.  Packard,  6  Wend.  387;  Lynde  v. 
Jndd,  3  Day,  499. 


CHAP,  v.]  EECOKDS   A^O)  JUDICIAL  WRITINGS. 


559 


posit,  or  in  the  hands  of  the  officer,  in  whose  custody  the  records 
of  the  court  are  kept.  And  this  cannot  be  shown  by  any  light, 
reflected  from  the  record  itself,  which  may  have  been  improperly 
placed  where  it  was  found.  Nothing  can  be  borrowed  ex  visceri- 
bus  Judicii,  until  the  original  is  proved  to  have  come  from  the 
proper  court.^  And  the  record  itself  must  have  been  finally  com- 
pleted, before  the  copy  is  admissible  in  evidence.  The  minutes 
from  which  the  judgment  is  made  up,  and  even  a  judgment  in 
paper,  signed  by  the  master,  are  not  proper  evidence  of  the 
record.2 

§  509.  Lost  records.  If  the  record  is  lost,  and  is  ancient,  its 
existence  and  contents  may  sometimes  ber  presumed ;  ^  but  whether 
it  be  ancient  or  recent,  after  proof  of  the  loss,  its  contents  may 
be  proved,  like  any  other  document,  by  any  secondary  evidence, 
where  the  case  does  not,  from  its  nature,  disclose  the  existence  of 
other  and  better  evidence.* 

§  510.  Verdicts.  A  verdict  is  sometimes  admissible  in  evidence, 
to  prove  the  finding  of  some  matter  of  reputation,  or  custom,  or 
particular  right.  But  here,  though  it  is  the  verdict,  and  not  the 
judgment,  which  is  the  material  thing  to  be  shown,  yet  the  rule 


1  Adamthwaite  v.  Svnge,  1  Stark.  183 
[Woods  V.  Banks,  14  N.  H.  101]. 

2  Bull.  N.  P.  228 ;  Rex  v.  Smith,  8  B. 
&  C.  341 ;  Godefroy  i-.  Jay,  3  C.  &  P.  192 ; 
Lee  V.  Meecoek,  5  Esp.  177  ;  Rex  v.  Bel- 
lamy, Ry.  &  M.  171;  Porter  v.  Cooper, 
6  C.  &  P.  354.  But  the  minutes  of  a 
judgment  in  the  House  of  Lords  are  the 
judgment  itself,  wliich  it  is  not  the  prac- 
tice to  draw  up  in  form.  Jones  v.  Ran- 
dall, Cowp.  17.  [The  clerk's  docket  is 
the  record  until  the  record  is  fully  ex- 
tended, and  the  same  rules  of  presumed 
verity  apply  to  it  as  to  the  record.  Every 
entry  is  a  statement  of  the  act  of  the 
court,  and  must  be  presumed  to  he  made 
by  its  direction,  either  by  a  particular 
order  for  that  entry,  or  by  a  general 
order,  or  by  a  general  and  recognized 
usage  and  practice,  whicli  presupposes 
such  an  order.  Read  v.  Sutton,  2  Cush. 
115,  123  ;  Sayles  v.  Briggs,  4  Met.  421, 
424;  Tillotson  v.  Warner,  3  Gray,  574, 
577.  Where  it  is  the  practice  of  the  clerks 
to  extend  the  judgment  of  the  courts  from 
the  minutes  and  papers  on  file,  the  record 
thus  e'stended  is  deemed  by  the  court  the 
originai  record.  Willard  v.  Harvey,  4 
Foster,  344.] 

s  Bull.  N.  P.  228  ;  Greene  v.  Proude,  1 
Mod.  117,  per  Ld.  Hale. 

*  See  supra,  §  84,  n.   (2),  and  cases 


there  cited.  See  also  Adams  v.  Betz,  1 
Watts,  425,  428;  Stockbridge  v.  West 
Stockbridge,  12  Mass.  400;  Donaldson 
V.  Winter,  1  Miller,  137  ;  Newcomb  r. 
Drummond,  4  Leigh,  57 ;  Bull.  N.  P. 
228;  Knight  v.  Dauler,  Hard.  323;  Anon., 
1  Salk.  284,  cited  per  Holt,  C.  J.;  Gore  v. 
Ehvell,  9  Shepl.  442.  [A  paper,  certified 
by  a  justice  of  the  peace  to  be  a  copy  of 
a  record  of  a  case  before  him,  is  admissi- 
ble in  evidence  of  such  proceedings,  al- 
though made  by  him  after  the  loss  of  the 
original,  and  pending  a  trial  in  winch  he 
had  testified  to  its  contents.  Tillotson  r. 
Warner,  3  Gray,  574,  577.  Tlie  contents 
of  a  complaint  and  warrant,  in  a  criminal 
case,  lost  after  being  returned  into  court, 
may  be  proved  by  secondary  evidence  ; 
and  witnesses  to  prove  its  contents  m;ir 
state  the  substance  thereof  without  giv- 
ing the  exact  words.  Commonwealth  v. 
Roark,  8  Cush.  210,  212.  See  also  Simp- 
son V.  Norton,  45  Maine,  281 ;  Hall  v. 
Manchester,  40  N.  H.  410.  [So  may  tlie 
contents  of  a  lost  deposition.  Burton  v. 
Driggs,  20  Wall.  (U.  S.)  125.  So  may 
the  contents  of  a  lost  rule  of  reference, 
or  any  other  paper,  though  it  be  the 
foundation  of  the  jurisdiction  of  the 
court.  Eaton  i'.  Hall,  5  Met.  (;\Iass.) 
287  ;  Petrie  v.  Benfield,  3  T.  R.  476.  See 
also  ante,  §  86,  and  post,  §  558,  n.] 


660  LAW  OF  EVIDENCE.  [PAKT  m. 

is,  that,  where  the  verdict  was  returned  to  a  court  having  power 
to  set  it  aside,  the  verdict  is  not  admissible,  without  producing  a 
copy  of  the  judgment  rendered  upon  it ;  for  it  may  be  that  the 
judgment  was  arrested,  or  that  a  new  trial  was  granted.  But 
this  rule  does  not  hold  in  the  case  of  a  verdict  upon  an  issue  out 
of  chancery,  because  it  is  not  usual  to  enter  up  judgment  in  such 
cases.^  Neither  does  it  apply  where  the  object  of  the  evidence  is 
merely  to  establish  the  fact  that  the  verdict  was  given,  without 
regard  to  the  facts  found  by  the  jury,  or  to  the  subsequent  pro- 
ceedings in  the  cause.^  And  where,  after  verdict  in  ejectment, 
the  defendant  paid  the  plaintiff's  costs,  and  yielded  up  the  posses- 
sion to  him,  the  proof  of  these  facts,  and  of  the  verdict,  has  been 
held  sufficient  to  satisfy  the  rule,  without  proof  of  a  judgment.^ 

§  511.  Decrees  in  chancery.  A  decree  in  chancery  may  be  proved 
by  an  exemplification,  or  by  a  sworn  copy,  or  by  a  decretal  order 
in  paper,  with  proof  of  the  bill  and  answer.*  And  if  the  bill  and 
answer  are  recited  in  the  order,  that  has  been  held  sufficient,  with- 
out other  proof  of  them.^  But  though  a  former  decree  be  recited 
in  a  subsequent  decree,  this  recital  is  not  proper  evidence  of  the 
former.^  The  general  rule  is,  that,  where  a  party  intends  to 
avail  himself  of  a  decree,  as  an  adjudication  upon  the  subject- 
matter,  and  not  merely  to  prove  collaterally  that  the  decree  was 
made,  he  must  show  the  proceedings  upon  wliich  the  decree  was 
founded.  "  The  whole  record,"  says  Chief  Baron  Comyns, 
"  which  concerns  the  matter  in  question,  ought  to  be  produced." ''' 
But  where  the  decree  is  offered  merely  for  proof  of  the  res  ipsa, 
namely,  the  fact  of  the  decree,  here,  as  in  the  case  of  verdicts,  no 
proof  of  any  other  proceeding  is  required.^     The  same  rules  apply 

1  Bull.  N.  P.  234 ;  Pitton  v.  Walter,  1  be   considered  as   a  loss  of  the  record. 

Stra.  102;  Fisher  v.  Kitchingman,  Willes,  Pruden  v.  Alden,  22  Pick.  184. 
867 ;   Ayrey  v.  Davenport,  2   N.  R.  474  ;  ^  Barlow  v.  i)upuy,  1  Martin,  N.  s. 

Donaldson  v.  Jude,  2  Bibb,  60.     Hence  it  442. 

is  not  ncc:essary,  in  New  York,  to  produce  ^  Schaeffer  v.  Kreitzer,  6  Binn.  430. 

a  copy  of  the  judgment  upon  a  verdict  *  Trowell  v.  Castle,   1   Keb.  21,  con- 

givenin  a  justice's  court,  tiie  justice  not  firmed  by  Bailey,  B.,  in  Blower  v.  Hollis, 

havin}^  power  to  set  it  aside.     Fclter  v.  1  Cromp.  &  Mees.  3!)6  ;  4  Com.  Dig.  97, 

Mullincr,  2  Joims.  181.     In  North  Caro-  tit.   Evidence,   C,  1 ;    Gresley  on   Evid. 

Una,  owing  to  an  early  looseness  of  prac-  p.  109. 

tice  in  making  up  the  record,  a  copy  of  ^  Bull.  N.  P.  244;  1  Keb.  21. 

the  verdict  is  received  witiiout  proof  of  ^  Winans  v.   Dunham,  5   Wend.  47; 

tiie    judgment;    the    latter    being    pre-  Wilson  y.  Conine,  2  Johns.  280. 
sunied,    until    the    contrary    is    shown.  ^  4  Com.  Dig.  tit.  Evidence,  A,  4  ;  2 

Deloah   v.    Worke,   3    Hawks,    30.     See  Phil.  Evid.  138,  139.     The  rule  equally 

also  Evans  ?^.  Thomas,  2  Stra.  833;  Day-  applies   to  decrees  of   the  ecclesiastical 

rell   V.    Bridge,   Id.    1264 ;    Tliurston    v.  courts.    Leake  v.  Marquis  of  Westmeath, 

Slatford,  1  Salk.     284.     If  the  docket  is  2  M.  &  Rob.  394. 
lost  before  the  record  is  made  up,  it  will  8  Jones  v.  Randall,  Cowp.  17. 


CHAP,  v.]  RECOEDS   AND   JUDICIAL   WRITINGS.  561 

to  sentences  in  the  admiralty,  and  to  judgments  in  courts  baron, 
and  other  inferior  courts.^ 

§  512.  Answers  in  chancery.  The  proof  of  an  answer  in  chan- 
cery may,  in  civil  cases,  be  made  by  an  examined  copy.^  Regu- 
larly, the  answer  cannot  be  given  in  evidence  without  proof  oi 
the  bill  also,  if  it  can  be  had.^  But  in  general,  proof  of  the 
decree  is  not  necessary,  if  the  answer  is  to  be  used  merely  as  the 
party's  admission  under  oath,  or  for  the  purpose  of  contradicting 
him  as  a  witness,  or  to  charge  him  upon  an  indictment  for  per- 
jury. The  absence  of  the  bill,  in  such  cases,  goes  only  to  the 
effect  and  value  of  the  evidence,  and  not  to  its  admissibility.*  In 
an  indictment  for  perjury  in  an  answer,  it  is  considered  necessary 
to  produce  the  original  answer,  together  with  proof  of  the  ad- 
ministration of  the  oath  ;  but  of  this  fact,  as  well  as  of  the  place 
where  it  was  sworn,  the  certificate  of  the  master,  before  whom  ifc 
was  sworn,  his  signature  also  being  proved,  is  sufficient  prima 
facie  evidence.^  The  original  must  also  be  produced  on  a  trial 
for  forgery.  In  civil  cases,  it  will  be  presumed  that  the  answer 
was  made  upon  oath.^  But  whether  the  answer  be  proved  by 
production  of  the  original,  or  by  a  copy,  and  in  whatever  case, 
some  proof  of  the  identity  of  the  party  will  be  requisite.  This 
may  be  by  proof  of  his  handwriting  ;  which  was  the  reason  of  the 
order  in  chancery  requiring  all  defendants  to  sign  their  answers ; 
or  it  may  be  by  any  other  competent  evidence.''' 

§  513.  Judgments  of  inferior  courts.  The  judgments  of  inferior 
courts  are  usually  proved  by  producing  from  the  proper  custody 
the  book  containing  the  proceedings.  And  as  the  proceedings  in 
these  courts  are  not  usually  made  up  in  form,  the  minutes,  or 
examined  copies  of  them,  will  be  admitted,  if  they  are  perfect.^ 

1  4  Cora.  Dig.  97, 98,  tit.  Evidence,  C,  1.  «  Bull.  N.  P.  238. 

2  Ewer  V.  Ambrose,  4  B.  &  C.  25.  T  i^gx  v.  Morris,  5  Burr.  1189 ;  Rex  v. 
'  1   Glib.  Evid.   55,   56 ;    Gresley  on     Benson,  2   C;impb.  508.     It   seems   that 

Evid.  pp.  108,  109.  slight  evidence  of  identity  will  be  deemed 

*  Ewer  V.  Ambrose,  4   B.   &   C.   25 ;  prima    facie    sufBcient.      In    Hennell   v. 

Uowe  V.  Brenton,  8  B.  &   C.   737,  765;  Lyon,  1    B.  &   Aid.  182,  coincidence  of 

Lady  Dartmouth  v.  Roberts,  16  East,  334,  name,  and  character  as  administrator,  was 

839,  340.  held  sufficient;    and  Lord  Ellenborough 

5  Bull.  N.  P.  238,  239  ;  Rex  v.  Morris,  thought,  that  coincidence  of  name  alone 

2  Burr.  1189;  Rex  v.  Benson,  2  Campb.  ought  to  be  enough  to  call  upon  the  party 

608;  Rex  v.  Spencer,  Ry.  &  M.  97.     The  to  sliow  that  it  was  some  other  person. 

jurat  is  not  conclusive  as  to  the  place.  See  also  Hodgkinson  v.  Willis,  3  Campb. 

Rex  V.  Embden,  9  East,  437.     The  same  401. 

strictness  seems  to  be  required  in  an  ac-  ^  Arundel   v.    White,   14    East,   216  ; 

tion  on  the  case  for  a  malicious  criminal  Fisher   v.  Lane,  2  W.  Bl.  834  ;    Rex  v. 

prosecution.     16  East,  340 ;  2  Phil.  Evid.  Smith,  8  B  &  C.  312,  per  Ld.  Tenterden. 

140.  Sed  qucere.  [The  original  papers  and  record  of  pro- 
VOL.  I                                                     36 


562 


LAW   OF  EVIDENCE. 


[P.VP.T  m. 


If  they  are  not  entered  in  books,  they  may  be  proved  by  the 
officer  of  the  court,  or  by  any  other  competent  person.^  In  either 
case,  resort  will  be  had  to  the  best  evidence,  to  establish  the 
tenor  of  the  proceedings  ;  and,  therefore,  where  the  course  is  to 
record  them,  which  will  be  presumed  until  the  contrary  is  shown, 
the  record,  or  a  copy,  properly  authenticated,  is  the  only  compe- 
tent evidence.^  The  caption  is  a  necessary  part  of  the  record  ; 
and  the  record  itself,  or  an  examined  copy,  is  the  only  legitimate 
evidence  to  prove  it.^ 

may  be  proved  by  production  of  the  origi- 
nal, or  by  copy  duly  authenticated,  or  by 
production  of  the  original  papers.  State 
V.  Bartlett,  47  Maine,  396.  And  the  copy 
is  sufHciently  authenticated  by  the  words, 
"a  true  copy,"  signed  by  the  magistrate 
at  the  end  of  the  copy.  Commonwealth 
V.  Ford,  14  Gray,  SOU.  And  it  is  no  fatal 
objection  to  a  copy  of  record,  that  the 
papers  are  certified  separately.  Gold- 
stone  V.  Davidson,  18  Cal.  41.  And  a  jus- 
tice's judgment  may  be  proved  by  the 
production  of  the  original  papers,  verified 
by  his  testimony  with  the  docket  entry  of 
the  justice,  if  no  extended  record  has 
been  made.  McGrath  v.  Seagrave,  2 
Allen,  443.  It  has  been  held,  in  some  of 
the  States,  that  such  evidence  is  not  suf- 
ficient, Strong  V.  Bradley,  13  Vt.  9 ; 
unless  where  the  justice  had  deceased 
without  perfecting  his  record.  Story  v. 
Kimball,  U  Vt.  541.  And  when  the  copy 
consisted  of  numerous  papers,  bound  to- 
gether with  a  tape,  with  notiiing  upon  the 
separate  papers  to  identify  or  autlien- 
ticate  them,  preceded  by  a  certificate 
"  that  the  papers  each  and  all  were  true 
copies  of  record,"  it  was  lield  insufficient, 
as  coming  from  a  district  court  of  the 
United  States  in  another  State.  Pike  v. 
Crehore,  40  Maine,  503.  If  the  court  has 
no  clerk,  tlie  judge  may,  under  the  act  of 
Congress,  act  both  as  clerk  and  presiding 
judge.  State  v.  Hincliman,  27  l^enn.  St. 
479.  The  original  of  a  writ  of  attach- 
ment and  e.xecution  is  as  good  evidence 
as  an  authenticated  copy.  Day  v.  Moore, 
13  Gray,  522.  The  copy  coming  from  an 
inferior  court,  with  the  transfer  of  the 
case,  is  good  evidence  to  sliow  what  was 
adjudicated.  Brackctt  v.  iloitt,  20  N.  H. 
257.  A  record,  certified  under  the  seal 
of  the  court,  is  sufficient  evidence  that  it 
is  a  court  of  record.  Smitii  v.  Redden,  6 
Har.  321.  See  also  Lancaster  v.  Lane, 
19  111.  242;  Brush  v.  Blanchard,  19  111. 
31 ;  Magee  v.  Scott,  32  Penn.  St.  539.] 

8  Rex   V.  Smith,  8  B.  &  C.  341,  per 
Bayley,  J. 


ceedings  in  insolvency,  deposited  in  the 
projier  office  and  produced  by  the  proper 
officer,  are  admissible  in  evidence  equally 
with  certified  copies  thereof,  although 
such  certified  copies  are  made  prima  facie 
evidence  by  statute.     Odiorue  v.  Bacon, 

6  Cush.  185.  See  also  Miller  v.  Hale,  26 
Penn.  St.  432.] 

1  Dyson  v.  Wood,  8  B.  &  C.  449,  451. 

2  See,  as  to  justices'  courts,  Mathews 
V.  Houghton,  2  Fairf.  377  ;  Holcomb  v. 
Cornish,  8  Conn.  375,  380;  Wolf  v.  Wash- 
burn, 6  Cowen,  261 ;  Webb  v.  Alexander, 

7  Wend.  281,  286.  As  to  probate  courts. 
Chase  v.  Hatliaway,  14  Mass.  222,  227 ; 
Judge  of  Probate  v.  Briggs,  3  N.  H.  309. 
As  to  justices  of  the  sessions.  Common- 
wealth V.  Bolkom,  3  Pick.  281.  [The 
copy  of  a  record  of  a  justice  of  the  peace 
need  not,  in  Massachusetts,  bear  a  seal. 
Commonwealth  v.  Downing,  4  Gray,  29, 
30.  And  a  copy  of  the  record  of  a  case 
before  a  justice  of  the  peace,  described  as 
such  in  the  record,  is  sufficiently  attested, 
if  attested  by  him  as  "justice,"  without 
adding  thereto  the  words  "of  the  peace." 
Ibid.  The  contents  of  a  justice's  record 
should  be  proved  by  an  autlienticated 
copy.  His  certificate  alleging  what  facts 
appear  by  the  record  is  not  receivable  as 
proof,  linglish  v.  Sprague,  33  Maine, 
440.  See  also,  as  to  records  of  a  justice 
of  the  peace,  Brown  v.  Edson,  23  Vt.  325. 
A  record  made  by  a  justice  of  the  peace, 
or  by  a  justice  of  a  police  court  in  a  criui- 
inal  case,  which  does  not  state  that  an 
appeal  was  claimed  from  his  decision  by 
the  party  convicted,  is  conclusive  evi- 
dence, in  an  action  brought  against  the 
justice  for  refusing  to  allow  the  ajipcal 
and  committing  the  party  to  prison,  that 
no  such  appeal  was  claimed.  Wells  o. 
Stevens,  2  Gray,  115,  118.  See  also  Ken- 
dall V.  Powers,  4  Met.  553.  The  law  of 
the  different  States,  as  to  what  is  compe- 
tent evidence  of  judicial  records  within 
the  same  State,  is  a  good  deal  relaxed 
from  the  requirements  of  the  act  of  Con- 
gress, or  of  the  common  law.  It  has  been 
held,  that  the  records  of  an  inferior  court 


CHAP,  v.]  RECORDS   AND   JUDICIAL  WRITINGS. 


563 


§  514.  Foreign  judgments.  The  usual  modes  of  authenticating 
foreign  judgments  are,  either  by  an  exemplification  of  a  copy 
under  the  great  seal  of  a  State  ;  or  by  a  copy,  proved  to  be  a 
true  copy  by  a  witness  who  has  compared  it  with  the  original ; 
or  by  the  certificate  of  an  officer,  proj)erly  authorized  by  law  to 
give  a  copy,  which  certificate  must  itself  also  be  duly  authenti- 
cated.^ If  the  copy  is  certified  under  the  hand  of  the  judge  of 
the  court,  his  handwriting  must  be  proved.^  If  the  court  has  a 
seal,  it  ought  to  be  affixed  to  the  copy,  and  proved  ;  even  though 
it  be  worn  so  smooth,  as  to  make  no  distinct  impression.^  And 
if  it  is  clearly  proved  that  the  court  has  no  seal,  it  must  be  shown 
to  possess  some  other  requisites  to  entitle  it  to  credit.*  If  the 
copy  is  merely  certified  by  an  officer  of  the  court,  without  other 
proof,  it  is  inadmissible.^ 

§  515.  Inquisitions.  In  cases  of  inquisitions  post  mortem  and 
other  private  offices^  the  return  cannot  be  read,  without  also 
reading  the  commission.  But  in  cases  of  more  general  concern, 
the  commission  is  of  such  public  notoriety  as  not  to  require 
proof.^ 

§  516.  Depositions  in  chancery.  With  regard  to  the  proof  of 
depositions  in  chancery,  the  general  rule  is,  that  they  cannot  be 
read,  without  proof  of  the  bill  and  answer,  in  order  to  show  that 
there  was  a  cause  depending,  as  well  as  who  were  the  parties, 


1  Church  V.  Hubbart,  2  Cranch,  228, 
per  Marshall,  C.  J. ;  supra,  §  488,  and 
cases  there  cited.  Proof  by  a  witness, 
who  saw  the  clerk  affix  the  seal  of  the 
court,  and  attest  the  copy  with  his  own 
name,  the  witness  having  assisted  him 
to  compare  it  with  the  original,  was  held 
sufficient.  Buttrick  v.  Allen,  8  Mass. 
273.  So,  where  the  witness  testified  that 
the  court  had  no  seal.  Packard  v.  Hill, 
7  Cowcn,  434. 

2  Henry  v.  Adey,  3  East,  221;  Bu- 
chanan i>.  Rucker,  1  Campb.  63.  The 
certificate  of  a  notary-public  to  this  fact 
was  deemed  sufficient,  in  Yeaton  v.  Fry, 

6  Cranch,  335. 

3  Cavan  i'.  Stewart,  1  Stark.  525 ; 
Flindt  V.  Atkins,  3  Campb.  215,  n. ;  Gar- 
dere  v.  Columbian  Ins.  Co.,  7  Johns.  514. 

*  Black  V.  Lord  Braybrook,  2  Stark. 
7,  per  Ld.  EUenborough ;  Packard  v.  Hill, 

7  Co  wen,  434. 

''  Appleton  V.  Lord  Braybrook,  2 
Stark.  6 ;  s.  c.  6  M.  &  S.  34  ;  Thompson 
V.  Stewart,  3  Conn.  171.  [Where  a  copy 
of  a  judgment  recovered  in  Canada  was 
certified  by  A,  as  clerk,  and  purported  to 


be  under  the  seal  of  the  court,  and  a  wit- 
ness testified  that  he  had  long  known  A 
in  the  capacity  of  clerk,  and  that  he 
helped  him  to  compare  the  copy  with  the 
original,  and  knew  it  to  be  correct,  and 
from  his  acquaintance  with  the  seal  of 
the  court  he  knew  that  the  seal  affixed 
to  the  copy  was  genuine,  it  was  held,  that 
the  copy  was  sufficiently  authenticated. 
Pickard  v.  Bailey,  6  Foster,  152.  In  a 
recent  case  (Di  Sora  (Duchess)  r.  Phillips, 
33  Law  J.  Ch.  H.  L.  129)  before  the 
House  of  Lords,  it  was  determined,  that, 
in  fixing  the  construction  of  a  foreign 
document  in  the  courts  of  that  country, 
the  court  are  bound  to  avail  themselves 
of  every  aid,  so  as  to  reach  the  same 
result  which  would  be  obtained  in  tlie 
courts  of  the  foreign  forum.  For  this 
end,  the  following  particulars  must  be 
regarded:  (1.)  An  accurate  translation ; 
(2.)  An  explanation  of  all  terms  of  art; 
(3.)  Information  as  to  any  special  law; 
(4.)  As  to  any  peculiar  rule  of  construc- 
tion of  the  foreign  State,  affecting  tho 
question.] 

«  Ball.  N.  P.  228,  229. 


664  LAW  OF  EVIDENCE.  [PAKT  IH. 

and  what  was  the  subject-matter  in  issue.  If  there  were  no 
cause  depending,  the  depositions  are  but  voluntary  affidavits  ; 
and  if  there  were  one,  still  the  depositions  cannot  be  read,  unless 
it  be  against  the  same  parties,  or  those  claiming  in  privity  with 
them.i  But  ancient  depositions,  given  when  it  was  not  usual  to 
enroll  the  pleadings,  may  be  read  without  antecedent  proof.^ 
They  may  also  be  read  upon  proof  of  the  bill,  but  without  j)roof 
of  the  answer,  if  the  defendant  is  in  contempt,  or  has  had  an 
opportunity  of  cross-examining,  which  he  chose  to  forego.^  And 
no  proof  of  the  bill  or  answer  is  necessary,  where  the  deposition 
is  used  against  the  deponent,  as  his  own  declaration  or  admission, 
or  for  the  purpose  of  contradicting  him  as  a  witness.^  So,  where 
an  issue  is  directed  out  of  chancery,  and  an  order  is  made  there, 
for  the  reading  of  the  depositions  upon  the  trial  of  the  issue,  the 
court  of  law  will  read  them  upon  the  order,  without  antecedent 
proof  of  the  bill  and  answer,  provided  the  witnesses  themselves 
cannot  be  produced.^ 

§  517.  Depositions  under  commission.  Depositions  taken  upon 
interrogatories,  under  a  special  commission^  cannot  be  read  without 
proof  of  the  commission  under  which  they  were  taken,  together 
with  the  interrogatories,  if  they  can  be  found.  The  absence  of 
the  interrogatories,  if  it  renders  the  answers  obscure,  may  destroy 
their  eft'ect,  but  does  not  prevent  their  being  read.^  Both  deposi- 
tions and  affidavits,  taken  in  another  domestic  tribunal,  may  be 
proved  by  examined  copies.'^ 

§  518.  Testaments.  Testaments,  in  England,  are  proved  in  the 
ecclesiastical  courts ;  and,  in  the  United  States,  in  those  courts 
which  have  been  specially  charged  with  the  exercise  of  this  branch 
of  that  jurisdiction,  generally  styled  courts  of  probate,  but  in  some 
States  knoAvn  by  other  designations,  as  orphans'  courts,  &c.  There 
are  two  modes  of  proof,  —  namely,  the  common  form,  which  is  upon 
the  oath  of  the  executor  alone,  before  the  court  having  jurisdic- 
tion of  the  probate  of  wills,  without  citing  the  parties  interested  ; 
and  the  more  solemn  form  of  law,  per  testes,  upon  due  notice  and 

1  2  Pliil.  Evid.  140;  Greslcy  on  Evid.  ^  Palmer  v.  Lord  Aylesbury,  15  Vcs. 
185;  I  Gilb.  Evid.  50,  57.                                176;   Gresley  on   Evid.    185;   Baylcy  v. 

2  1  Gilb.  Evid.  04;  Gresley  on  Evid.     Wylic,  6  Esp.  85. 

185 ;  Baylcy  v.  Wylie,  6  Esp.  85.  «  Rowe  v.  Brenton,  8  B.  &  C.  737,  765. 

8  Cazenove  v.  Vauglian,  1  M.  &S.  4;  ^  Supra,    §§    507,   508;    Ilighfiold   v. 

Carrington  v.  Carnock,  2  Sim.  507.  Peake,  1  M.'&  Malk.  110.     In  criminal 

■•  Iliglifield   V.  Peake,  1    M.  &  Malk.  cases,  some  proof  of  identity  of  the  per- 

109  ;  sujtia,  §  512.  son  is  requisite.     Supra,  §  512. 


CHAP,  v.]  RECORDS   AND   JUDICIAL  WRITINGS.  565 

hearing  of  all  parties  concerned.^  The  former  mode  has,  in  the 
United  States,  fallen  into  general  disuse.  By  the  common  law, 
the  ecclesiastical  courts  have  no  jurisdiction  of  matters  concern- 
ing the  realty ;  and  therefore  the  probate,  as  far  as  the  realty 
is  concerned,  gives  no  validity  to  the  will.^  But  in  most  of  the 
United  States,  the  probate  of  the  will  has  the  same  effect  in  the 
case  of  real  estate  as  in  that  of  the  j^ersonalty ;  and  where  it  has 
not,  the  effect  will  be  stated  hereafter.^  This  being  the  case,  the 
presen  t  general  course  is  to  deposit  the  original  will  in  the  regis- 
try of  the  Court  of  Probate,  delivering  to  the  executor  a  copy  of 
the  will,  and  an  exemplification  of  the  decree  of  allowance  and 
probate.  And  in  all  cases  where  the  Court  of  Probate  has  juris- 
diction, its  decree  is  the  proper  evidence  of  the  probate  of  the 
will,  and  is  proved  in  the  same  manner  as  the  decrees  and  judg- 
ments of  other  courts.*  A  court  of  common  law  will  not  take 
notice  of  a  will,  as  a  title  to  personal  property,  until  it  has  been 
thus  proved ;  ^  and  where  the  will  is  required  to  be  originally 
proved  to  the  jury  as  documentary  evidence  of  title,  it  is  not 
permitted  to  be  read  unless  it  bears  the  seal  of  the  Ecclesiastical 
Court,  or  some  other  mark  of  authentication.^ 

§  519.  Letters  of  administration.  Letters  of  administration  are 
granted  under  the  seal  of  the  court  having  jurisdiction  of  the 
probate  of  wills  ;  and  the  general  course  in  the  United  States,  as 
in  the  case  of  wills,  is  to  pass  a  formal  decree  to  that  effect,  which 
is  entered  in  the  book  of  records  of  the  court.  The  letter  of  ad- 
ministration, therefore,  is  of  the  nature  of  an  exemplification  of 
this  record,  and  as  such  is  received  without  other  proof.  But 
where  no  formal  record  is  drawn  up,  the  book  of  acts,  or  the  origi- 
nal minutes  or  memorial  of  the  appointment,  or  a  copy  thereof 
duly  authenticated,  will  be  received  as  competent  evidence." 

1  2  Bl.  Comm.  508.  e  Rgx  v.  Barnes,  1  Stark.  243  ;  Shum- 

2  Hoe  y.  Melthorpe,  3  Salk.  154 ;  Bull,  way  v.  Holbrook,  1  Pick.  114.  See 
N.  P.  245,  246.  further,   2    Phil.   Evid.  172 ;    Gorton   v. 

8  See   ivfra,   §   550,   and   vol.   ii.  tit.  Dyson,  1  B.  &  B.  221,  per  Richardson,  J. 

Wills,  §  672.  [In  regard  to  wills  executed  and  proved 

*  Supra,  §§   501-509,  513 ;    Chase   v.  in  a  foreign  country,  where  it  becomes 

Hathaway,  14  Mass.  222,  227 ;  Judge  of  necessary  to  enforce  tlieir  provisions  in 

Probate  v.  Briggs,  3  N.  H.  309;  Earns-  another  forum,  it  is  generallj'  sufficient 

worth  I'.  Briggs,  6  N.  H.  561.  to   produce   an   exemplification    of    tlie 

5  Stone  V.  Forsyth,  2  Doug.  707.     The  foreign    decree    allowing   the   will    and 

character  of  executor  may  be  proved  by  probate,  and  to  record  the  same  in  the 

the    act-book,    without    producing    the  proper  office   of   probate,  in  tiie  forum 

probate  of  the  will.     Cox  u.  AUinghani,  where  such  evidence  is  to  be  used.     Ishara 

Jacob,  514.    And  see  Doe  v.  Mew,  7  Ad.  v.  Gibbons,  1  Bradf  Sur.  69.] 
&  EI.  239.  ^  The  practice  on  this  subject  is  Tari- 


666  LAW   OF   EVIDENCE.  [PART  JU. 

§  520.  Examinations  in  criminal  oases.  Examinations  of  prison- 
ers in  criminal  cases  are  usually  proved  by  the  magistrate  or  clerk 
who  wrote  them  down.^  But  there  must  be  antecedent  proof  of 
the  identity  of  the  prisoner  and  of  the  examination.  If  the  pris- 
oner has  subscribed  the  examination  with  his  name,  proof  of  his 
liandwritiug  is  sufficient  evidence  that  he  has  read  it ;  but  if  he 
has  merely  made  his  mark,  or  has  not  signed  it  at  all,  the  mag- 
istrate or  clerk  must  identify  the  prisoner,  and  prove  that  the 
writing  was  duly  read  to  him,  and  that  he  assented  to  it.^ 

§  521.  Writs.  In  regard  to  the  proof  of  writs,  the  question 
whether  this  is  to  be  made  by  production  of  the  writ  itself,  or  by 
a  copy,  depends  on  its  having  been  returned  or  not.  If  it  is  only 
matter  of  inducement  to  the  action,  and  has  not  been  returned, 
it  may  be  proved  by  producing  it.  But  after  the  writ  is  returned, 
it  has  become  matter  of  record,  and  is  to  be  proved  by  a  copy 
from  the  record,  this  being  the  best  evidence  .^  If  it  cannot  be 
found  after  diligent  search,  it  may  be  proved  by  secondary  evi- 
dence, as  in  other  cases.*  The  fact,  however,  of  the  issuing  of 
the  writ  may  sometimes  be  proved  by  the  admission  of  the  party 
against  whom  it  is  to  be  proved.^  And  the  precise  time  of  suing 
it  out  may  be  shown  by  parol.^ 

§  522.  AdmissibiHty  and  effect  of  record.  We  proceed  in  the 
next  place  to  consider  the  adinussibility  and  effect  of  eec- 
OE.DS  as  instruments  of  evidence.  The  rules  of  law  upon  this 
subject  are  founded  upon  these  evident  principles  or  axioms,  that 
it  is  for  the  interest  of  the  community  that  a  limit  should  be  pre- 
scribed to  litigation ;  and  that  the  same  cause  of  action  ought  not 

ous  in  the  different  States.     See  Dicken-  *  Supra,  §  84,  n.  (2). 

son  V.  McCraw,  4  Rand.  158  ;  Seymour  v.  s  As,    in    an    action    by  the    ofl5cer 

Beach,  4  Vt.  493 ;  Jackson  v.  Robinson,  against  the  bailee  of  the  goods  attached, 

4   Wend.    436 ;    Farnswortli    v.   Briggs,  for  which    he  has  given  a  forthcoming 

6  N.  H.  561  ;  Iloskins  v.  Miller,  2  Dev-  obligation,  reciting  the  attachment.     Ly- 

ereux,  3(50;   Owings  v.  Bcall,   1  Littell,  man  r.  Lyman,  11  Mass.  317  ;  Spencer  y. 

257,  259;    Browning  v.   Huff,  2  Bailey,  Williams,   2   Vt.   209;   Lowry  v.  Cady, 

174,    179;    Owings    v.    Hull,    9    Peters,  4  Vt.  504;    Foster   v.   Trull,   12   Johns. 

608,   626.      See   also    Bull.    N.   P.    246  ;  456.     So  where  the  sheriff  is  sued  for  an 

Eldf-n  V.  Keddel,  8  East,  187 ;  2  M.  &  S.  escape,  and  has  not  returned  the  precept 

607,  per  Bayiey,  J.;   2  Phil.  Evid.  172,  on  which  the  arrest  was  made.     Uinmaa 

V3  ;  1  Stark.  Evid.  255.  v.  Brees,  13  Johns.  529. 

1  2  Hale,  P.  C.  52,  284.  «  Lester  v.  Jenkins,  8  B.  &  0.  339; 

2  See  .s»/>ra,  §§  224,  225,  227,  228.  Morris  v.  Pugh,  3  Burr.  1241  ;  Wilton  v. 
»  Bull.  N.  P.  234;  Foster  v.  Trull,  12  Girdlestone,  5  B.  &  Aid.  847;  Michaels 

Johns.  456;    Pigot   v.  Davis,  3    Hawks,  v.  Shaw,  12  Wend.  687;  Allen  v.  Port- 

25  ;  Frost  v.  Shapleigh,  7  Greenl.  236 ;  land  Stage  Co.,  8  Greenl.  507  ;  Taylor  v. 

Brush  V.  Taggart,  7  Johns.  19  ;  Jenner  v.  Dundass,  1  Wash.  94. 
JollifEe,  6  Johns.  9. 


CHAP,  v.]  RECORDS   AND  JUDICIAL  WRITINGS.  567 

to  be  brought  twice  to  a  final  determination.  Justice  requires 
that  every  cause  be  once  fairly  and  impartially  tried ;  but  the 
public  tranquillity  demands  that,  having  been  once  so  tried,  all 
litigation  of  that  question,  and  between  those  parties,  should  be 
closed  for  ever.  It  is  also  a  most  obvious  principle  of  justice,  that 
no  man  ought  to  be  bound  by  proceedings  to  which  he  was  a 
stranger  ;  but  the  converse  of  this  rule  is  equally  true,  that  by 
proceedings  to  which  he  was  not  a  stranger  he  may  well  be  held 
bound. 

§  523.  Parties.  Under  the  term  parties^  in  this  connection,  the 
law  includes  all  who  are  directly  interested  in  the  subject-matter, 
and  had  a  right  to  make  defence,  or  to  control  the  proceedings, 
and  to  appeal  from  the  judgment.  This  right  involves  also  the 
right  to  adduce  testimony,  and  to  cross-examine  the  witnesses 
adduced  on  the  other  side.  Persons  not  having  these  rights  are 
regarded  as  strangers  to  the  cause.^  But  to  give  full  effect  to  the 
principle  by  which  parties  are  held  bound  by  a  judgment,  all  per- 
sons who  are  represented  by  the  parties,  and  claim  under  them, 
or  in  privity  with  them,  are  equally  concluded  by  the  same  pro- 
ceedings. We  have  already  seen  that  the  term  privity  denotes 
mutual  or  successive  relationship  to  the  same  rights  of  property .^ 
The  ground,  therefore,  upon  which  persons  standing  in  this  rela- 
tion to  the  litigating  party  are  bound  by  the  proceedings  to  which 
he  was  a  party  is,  that  they  are  identified  with  him  in  interest ; 
and  wherever  this  identit}^  is  found  to  exist,  all  are  alike  con- 
cluded. Hence,  all  privies,  whether  in  estate,  in  blood,  or  in  law, 
are  estopped  from  litigating  that  which  is  conclusive  upon  liim 
with  whom  they  are  in  privity.^     And  if  one  covenants  for  the 

1  Duchess  of  Kingston's  case,  20  How-  which  he  cannot  bring  a  writ  of  error  to 

ell's  St.  Tr.  538,  n. ;  Carter  v.  Bennett,  4  reverse,   he   may,  without   reversing  it, 

Fla.    352.     Where  a  father,  during   the  prove  it  so  erroneous  and  void  in  any  suit 

absence    of    his    minor    son    from    the  in  which  its  validity  is  drawn  in  question, 

country,  commenced  an  action  of  crini.  By  Metcalf,   J.,   in    Vgse   v.   Morton,  4 

con.  as  his  procheinamij,  the  judgment  was  Cush.  27,  31.] 

held  conclusive  against  the  son,  after  his  ^  Supra,  §  189.     See  also  §§  19,  20. 

majority  ;  the  proc/iein  amy  liaving  been  3  Carver  v.  Jackson,  4  Peters,  85,  86; 

appointed    by    the    court.      Morgan    v.  Case  v.  Reeve,  14  Johns.  81.     See  also 

Tliorne,  9  Dowl.  228.     In  New  York,  a  Kinnersley  v.  Wm.  Orpe,  2  Doug.  617, 

judgment  in  an  action  on  a  joint  obliga-  expounded  in  14  Johns.  81,  82,  by  Spen- 

tion  is  conclusive  evidence  of  the  liability  cer,  J.     [A  privy  by  representation,  as  an 

of  those  only  who  were  personally  served  executor,   administrator,   or  assignee,  is 

with  the  process.     2  Rev.  Stat.  574  (3d  bound  by  a  judgment  against  his  princi- 

ed.).     [It  is  a  general  and  established  rule  pal.     Chapin  y.  Curtis,  23  Conn.  888.     A 

of  law,  that  when  a  party's  right  may  be  judgment  on  the  merits  against  a  master, 

collaterally  affected  by  a  judgment,  which  in  an  action  of  trespass,  for  the  act  of  his 

for  any  cause  is  erroneous  and  void,  but  servant,  is  a  bar  to  an  action  against  the 


568  LAW   OF  EVIDENCE.  [PAET  IH. 

results  or  consequences  of  a  suit  between  others,  as  if  he  cove- 
nants that  a  certain  mortgage,  assigned  by  him,  shall  produce  a 
specified  sum,  he  thereby  connects  himself  in  privity  with  the 
proceedings,  and  the  record  of  the  judgment  in  that  suit  will  be 
conclusive  evidence  against  him.^ 

§  524.  Both  parties  bound,  or  neither.  But  to  prevent  this  rule 
from  working  injustice,  it  is  held  essential  that  its  operation  be 
mutual.  Both  the  litigants  must  be  alike  concluded,  or  the  pro- 
ceedings cannot  be  set  up  as  conclusive  upon  either.  For  if  the 
adverse  party  was  not  also  a  party  to  the  judgment  offered  in 
evidence,  it  may  have  been  obtained  upon  his  own  testimony ; 
in  which  case,  to  allow  him  to  derive  a  benefit  from  it  would  be 
unjust.2  Another  qualification  of  the  rule  is,  that  a  party  is  not 
to  be  concluded  by  a  judgment  in  a  prior  suit  or  prosecution, 
where,  from  the  nature  or  course  of  the  proceedings,  he  could  not 
avail  himself  of  the  same  means  of  defence,  or  of  redress,  which 
are  open  to  him  in  the  second  suit.^ 

§  525.  Cases  in  rem  excepted.  An  apparent  exception  to  this 
rule,  as  to  the  identity  of  the  parties,  is  allowed  in  the  cases 
usually  termed  proceedings  in  rem,  wliich  include  not  only  judg- 
ments of  condemnation  of  property,  as  forfeited  or  as  prize,  in  the 
Exchequer  or  Admiralty,  but  also  the  decisions  of  other  courts 
directly  upon  the  personal  status  or  relations  of  the  party,  such 
as  marriage,  divorce,  bastardy,  settlement,  and  the  like.  These 
decisions  are  binding  and  conclusive,  not  only  upon  the  parties 
actually  litigating  in  the  cause,  but  upon  all  others  ;  partly  upon 
the  ground  that,  in  most  cases  of  this  kind,  and  especially  in  ques- 
tions upon  property  seized  and  proceeded  against,  every  one  who 
can  possibly  be  affected  by  the  decision  has  a  right  to  appear  and 
assert  his  own  rights  by  becoming  an  actual  party  to  the  proceed- 
ings ;  and  partly  upon  the  more  general  ground  of  public  policy 
and  convenience,  it  being  essential  to  the  peace  of  society  that 
questions  of  this  kind  should  not  be  left  doubtful,  but  that  the 

servant  for  the  same   act,  though  such  parties  are  dependent  upon  those  of  the 

judgment  was  not  rendered  till  after  the  parties  to  such  judgment,  and  such  depen- 

pencral  issue  was  pleaded  to  the  action  dence  may  be  shown  by  evidence  en  ^a/s. 

against  the  servant ;  and  parol  evidence  is  Key  v.  Dent,  14  Md.  80.1 

admissible  to  show  that  the  same  matter  ^  Rapelye  v.  Prince,  4  Hill,  119. 

is  in  controversy  in  both  actions.     Emery  2  Wood    v.    Davis,   7    Cranch,    271 ; 

!'.    Fowler,  39  Maine,  32(i.      So,  too,  in  Davis  v.  Wood,  1  Wheat.  6. 

all  cases,  the  record  of  a  judgment  is  evi-         ^  i  Stark.  Evid.  214,  215. 

dence  in  suits   where  the  rights  of  tlie 


CHAP,  v.]  EECOEDS   AND   JTJDICIAL   WRITINGS. 


569 


domestic  and  social  relations  of  every  member  of  the  community 
should  be  clearly  defined  and  conclusively  settled  and  at  rest.^ 

§  526.  Judgments  of  a  public  nature  excepted.  A  further  ex- 
ception is  admitted  in  the  case  of  verdicts  and  judgments  upon 
subjects  of  a  public  nature,  such  as  customs,  and  the  like  ;  iii 
most  all  of  which  cases,  evidence  of  reputation  is  admissible ; 
and  also  in  cases  of  judgments  in  rem,  which  may  be  again  men- 
tioned hereafter.2 

§  527.  Collateral  facts.  A  judgment,  when  used  by  way  of 
inducement,  or  to  establish  a  collateral  fact,  may  be  admitted, 
though  the  parties  are  not  the  same.  Thus,  the  record  of  a  con- 
viction may  be  shown,  in  order  to  prove  the  legal  infamy  of  a 
witness.  So,  it  may  be  shown,  in  order  to  let  in  the  proof  of 
what  was  sworn  at  the  trial,  or  to  justify  proceedings  in  execu- 
tion of  the  judgment.  So,  it  may  be  used  to  show  that  the  suit 
was  determined  ;  or,  in  proper  cases,  to  prove  the  amount  which 
a  principal  has  been  compelled  to  pay  for  the  default  of  his 
agent ;  or,  the  amount  which  a  surety  has  been  compelled  to  pay 
for  the  principal  debtor ;  and,  in  general,  to  show  the  fact,  that 


1  1  Stark.  Evid.  27,  28.  [The  decree 
of  a  court  of  competent  jurisdiction  dis- 
missing for  want  of  proof  a  libel  filed 
by  a  wife  against  her  husband,  after  liav- 
ing  left  liis  house,  for  a  divorce  from  bed 
and  board  for  extreme  cruelty,  is  not  con- 
clusive evidence  of  her  having  unjustifi- 
ably left  his  house,  in  an  action  by  a  third 
person  against  him  for  necessaries  fur- 
nished the  wife.  Burlen  v.  Shannon,  3 
Gray,  387,  389.  In  giving  the  opinion  of 
the  court  in  this  case,  Shaw  C.  J.,  said  : 
"  We  have  no  doubt  that  a  'decree 
upon  a  libel  for  divorce,  directly  deter- 
mining the  status  of  the  parties,  that  is, 
whether  two  persons  are  or  are  not  hus- 
band and  wife  ;  or,  if  they  have  been 
husband  and  wife,  that  such  a  decree  di- 
vorcing them,  either  a  vinculo  or  a  mensa, 
would  be  conclusive  of  the  fact  in  all 
courts  and  everywhere,  that  they  are  so 
divorced.  If  it  were  alleged  that  a  mar- 
riage was  absolutely  void,  as  being  within 
the  degrees  of  consanguinity,  a  decree  of 
this  court,  on  a  libel  by  one  of  the  parties 
against  the  other,  adjudging  the  mar- 
riage to  be  void,  or  valid,  would  be  con- 
clusive everywhere.  So,  under  the  Rev. 
Stat.  76,  §  4,  where  one  party  alleges 
and  the  other  denies  the  subsistence  of  a 
valid  marriage  between  them,  the  adjudi- 
cation of  the  competent  tribunal  would  be 
conclusive.     The  legal,  social  relation  and 


condition  of  the  parties,  as  being  husband 
and  wife  or  otherwise,  divorced  or  other- 
wise, is  what  we  understand  by  the  term 
status.  To  this  extent  the  decree  in  ques- 
tion had  its  full  effect,  by  wliich  every 
party  is  bound.  It  did  not  establish,  but 
it  recognized  and  presupposed,  the  relation 
of  husband  and  wife  as  previously  sub- 
sisting; and  as  the  final  judgment  was, 
that  the  grounds  on  which  a  divorce  a 
7nensa  was  claimed  were  not  established  in 
proof,  and  the  libel  was  dismissed,  which 
was  a  final  judgment,  no  change  in  the 
status  of  the  parties  was  eflTected,  and  they 
stood,  after  the  judgment,  in  the  relation 
in  which  they  stood  at  the  commencement 
of  the  suit,  —  that  of  husband  and  wife. 
Beyond  this  legal  effect  of  a  judgment  in 
a  case  for  divorce  —  that  of  determining 
the  status  of  the  parties  —  the  law  applies, 
as  in  other  judicial  proceedings  ;  viz.,  that 
a  judgment  is  not  evidence  in  another 
suit,  except  in  cases  in  which  the  same 
parties  or  their  privies  are  litigating  in  re- 
gard to  the  same  subject  of  controversy." 
Authenticated  copies  of  decrees  of  cer- 
tain courts  in  the  Russian  province  of 
Lithuania,  on  a  question  of  pedigree,  of 
which  they  have  jurisdiction,  are  conclu- 
erive  evidence  of  the  facts  adjudicated 
against  all  the  world.  Ennis  v.  Smith,  14 
How.  (U.  S.)  400. 

2  See  infra,  §§  541,  542,  544,  555. 


570  LAW  OF  EVIDENCE.  [PAET  JH. 

the  judgment  was  actually  rendered  at  such  a  time,  and  for  such 
an  amount.^ 

§  527  a.  Judgments  as  admissions.  A  record  may  also  be  ad- 
mitted in  evidence  in  favor  of  a  stranger,  against  one  of  the  par- 
ties, as  containing  a  solemn  admission,  or  judicial  declaration  by 
such  party,  in  regard  to  a  certain  fact.  But  in  that  case  it  is 
admitted  not  as  a  judgment  conclusively  establishing  the  fact, 
but  as  the  deliberate  declaration  or  admission  of  the  party  him- 
self that  the  fact  was  so.  It  is  therefore  to  be  treated  according 
to  the  principles  governing  admissions,  to  which  class  of  evi- 
dence it  properly  belongs.  Thus,  where  a  carrier  brought  trover 
against  a  person  to  whom  he  had  delivered  the  goods  intrusted  to 
him,  and  which  were  lost,  the  record  in  this  suit  was  held  admis- 
sible for  the  owner,  in  a  subsequent  action  brought  by  him 
against  the  carrier,  as  amounting  to  a  confession  in  a  court  of 
record,  that  he  had  the  plaintiff's  goods.^  So,  also,  where  the 
plaintiff,  in  an  action  of  trespass  quare  clausum  /regit,  claimed 
title  by  disseisin,  against  a  grantee  of  the  heirs  of  the  disseisee,  it 
was  held,  that  the  count,  in  a  writ  of  right  sued  by  those  heirs 
against  him,  might  be  given  in  evidence,  as  their  declaration  and 
admission  that  their  ancestor  died  disseised,  and  that  the  present 
plaintiff  was  in  possession.^  So,  where  two  had  been  sued  as 
partners,  and  had  suffered  judgment  by  default,  the  record  was 
held  competent  evidence  of  an  admission  of  the  partnershij),  in 
a  subsequent  action  brought  by  a  third  person  against  them  as 
partners.**  And  on  the  same  ground,  in  a  libel  by  a  wife  for  a 
divbrce,  because  of  the  extreme  cruelty  of  the  husband,  the  record 
of  his  conviction  of  an  assault  and  battery  upon  her,  founded 
upon  his  plea  of  "  guilty,"  was  held  good  evidence  against  him, 
as  a  judicial  admission  of  the  fact.  But  if  the  plea  had  been 
"  not  guilty,"  it  would  have  been  otherwise.^ 

§  528.  Ground  of  conclusiveness  of  judgments.  The  principle 
upon  which  judgments  are  held  conclusive  upon  the  parties 
requires   that  the   rule    should   apply   only   to  that  which  was 

1  See  further,  in/ra.  §§  538,  639 ;  Lock  3  Robinson  v.  Swett,  3  Groenl.  310; 
V.  Winston,  10  Ala.  84i) ;  King  v.  Chase,  sujmi,  §  195  ;  Wells  v.  Compton,  3  Rob. 
15  N.  H.  9;  Greeny.  New  River  Co.,  4  (La.)  171.  Andsee  Kellenbergert'.  Sturte- 
T.    R.    589    [Ciiamberlain   v.   Carlisle,  6  vant,  7  Cash.  465. 

Foster,  540;  Key  v.  Dent,  14  Md.  80].  *  Craiij  v.  Carleton,  8  Shepl.  4'J2. 

2  Tiley  f.  Cowling,  1   Ld.  Raym.  744,  5  Bradley    >•.   Bradley,   2    Fairf.    367; 
per  Holt,  C.  J. ;  s.  c.  Bull.  N.  P.  243 ;  Woodruff  v.  Woodruff,  Id.  475. 
Parsons  v.  CoiJeland,  33  Maine,  370. 


CHAP,  v.]  KECOEDS   AND  JUDICIAL  WEITINGS.  571 

directly  in  issue,  and  not  to  every  thing  which  was  incidentally 
brought  into  controversy  during  the  trial.  We  have  seen  that 
the  evidence  must  correspond  with  the  allegations,  and  he  con- 
fined to  the  point  in  issue.  It  is  only  to  the  material  allegations 
of  one  party  that  -the  other  can  be  called  to  answer ;  it  is  only 
upon  such  that  an  issue  can  properly  be  formed ;  to  such  alone 
can  testimony  be  regularly  adduced  ;  and  upon  such  an  issi:e 
onl}'  is  judgment  to  be  rendered.  A  record,  therefore,  is  not 
held  conclusive  as  to  the  truth  of  any  allegations,  which  were 
not  material  nor  traversable  ;  but  as  to  things  material  and  trav- 
ersable, it  is  conclusive  and  final.  The  general  rule  on  this  sub- 
ject was  laid  down  with  admirable  clearness,  by  Lord  Chief 
Justice  De  Grey,  in  the  Duchess  of  Kingston's  case,^  and  has 
been  rej)eatedly  confirmed  and  followed,  without  qualification. 
"  From  the  variety  of  cases,"  said  he,  "  relative  to  judgments 
being  given  in  evidence  in  civil  suits,  these  two  deductions  seem 
to  follow  as  generally  true :  First,  that  the  judgment  of  a  court 
of  concurrent  jurisdiction,  directly  upon  the  point,  is,  as  a  plea,  a 
bar,  or,  as  evidence,  conclusive  between  the  same  parties,  upon 
the  same  matter,  directly  in  question  in  another  court ;  secondly, 
that  the  judgment  of  a  court  of  exclusive  jurisdiction,  directly 
upon  the  point,  is,  in  like  manner,  conclusive  upon  the  same 
matter,  between  the  same  parties,  coming  incidentally  in  ques- 
tion in  another  court,  for  a  different  purpose.^  But  neither  the 
judgment  of  a  concurrent  nor  exclusive  jurisdiction  is  evidence 
of  any  matter,  which  came  collaterally  in  question,  though  within 
their  jurisdiction  ;  nor  of  any  matter  incidentally  cognizable ; 
nor  of  any  matter  to  be  inferred  by  argument  from  the  judg- 
ment." 3 

1  20  Howell's  St.  Tr.  538  ;  expressly  in  equity  also.  Pearce  v.  Gray,  2  Y.  &  C. 
adopted  and  confirmed  in  Harvey  v.  Rich-  322.  Plans,  and  documents  referred  to  in 
ards,  2  Gall.  229,  per  Story,  J. ;  and  in  the  pleadings,  are  conclusive  upon  the 
Hibsham  v.  DuUeban,  4  Watts,  183,  per  parties,  if  they  are  adopted  by  the  issues 
Gibson,  C.  J.  And  see  King  v.  Chase,  15  and  make  part  of  the  judgment ;  but  not 
N.  H.  9.  [The  judgment  of  a  tribunal  otherwise.  Hobbs  v.  Parker,  1  Redingt. 
having    competent    authority    and    full  143. 

jurisdiction   is   presumptively   upon  the  *  See  2  Kent,  Comm.  119-121 ;  Story 

merits,  and  is,  prima  facie,  a  bar  to  any  on  Confl.  of  Laws,  §§  591-593,  603-610. 

after  suit.      Stearns  v.   Stearns,  32  Vt.  This  subject,  particularly  with  regard  to 

678.     And  the  award  of  an  arbitrator  is,  the  identity  of  the  issue  or  subjcct-mat- 

prima  facie,  conclusive  upon  all  matters  ter  in  controversy,  in  actions  concerning 

of    difference   submitted.      Harrison    v.  the  realty,  is  ably  reviewed  and  illns- 

Creswick,  13  Com.  B.  399,  416.]  trated  by  Putnam,  J.,  in  Arnold  v.  Ar- 

2  Thus,  a  judgment  at  law  against  the  nold,  17  Pick.  7-14  [Vose  v.  Morton,  1 
validity  of  a  bill,  as  having  been  given  for  Cush.  27,  31]. 

a  gambling  debt,  is  conclusive  of  that  fact 


572  LAW   OF  EVIDENCE.  [PAET  lH. 

§  529.  Judgment  must  be  final.  It  is  Only  where  the  point  in 
issue  has  been  determined,  that  the  judgment  is  at  bar.  If  the 
suit  is  discontinued,  or  the  plaintiff  becomes  nonsuit,  or  for  any 
other  cause  there  has  been  no  judgment  of  the  court  upon  the 
matter  in  issue,  the  proceedings  are  not  conclusive.^ 

§  530.  And  upon  the  merits.  So,  also,  in  order  to  constitute  the 
forinei  judgment  a  complete  bar,  it  must  appear  to  have  been  a 
decision  upon  the  merits ;  and  this  will  be  sufiicient,  though  the 
declaration  were  essentially  defective,  so  that  it  would  have  been 
adjudged  bad  on  demurrer.^  But  if  the  trial  went  off  on  a  tech- 
nical defect,^  or  because  the  debt  was  not  yet  due,^  or  because 
the  court  had  not  jurisdiction,^  or  because  of  a  temporary  dis- 
ability of  the  plaintiff  to  sue,^or  the  like,  the  judgment  will  be  no 
bar  to  a  future  action. 

§  531.  Former  recovery.  It  is  well  settled,  that  a  former 
recovery  may  be  shown  in  evidence,  under  the  general  issue,  as 
well  as  pleaded  in  bar ;  and  that  when  pleaded,  it  is  conclusive 
upon  the  parties.'^  But  whether  it  is  conclusive  when  given  in 
evidence  is  a  point  which  has  been  much  doubted.  It  is  agreed, 
that  when  there  has  been  no  opportunity  to  plead  a  matter  of 
estoppel  in  bar,  and  it  is  offered  in  evidence,  it  is  equally  conclu- 
sive, as  if  it  had  been  pleaded.^  And  it  is  further  laid  down, 
that  when  the  matter,  to  which  the  estoppel  applies,  is  alleged 
by  one  party,  and  the  other,  instead  of  pleading  the  estoppel, 
chooses  to  take  issue  on  the  fact,  he  waives  the  benefit  of  the 

1  Knox  V.  Waldoborough,  5  Greenl.  parties  upon  the  same  cause  of  action, 
185;  Hull  V.  Blake,  13  Mass.  155;  Swei-  though  the  State  court,  in  pronouncing 
gart  V.  Berk,  8  S.  &  R.  305;  Bridge  v.  its  judgment,  may  liave  expressed  an 
Sumner,  1  Pick.  371  ;  3  Bl.  Comm.  296,  opinion  upon  the  merits  of  the  plaintiff's 
377.  So,  if  the  judgment  has  been  re-  case.  Homer  y.  Brown,  16  How.  (U.  S.) 
versed.      Wood  v.  Jackson,  8  Wend.  9.  854.] 

If  there  has  been  no  judgment,  it  has  ^  Ibid.;  Lane  v.  Harrison,  Munf.  573; 

been  ruled   that   the   pleadings  are  not  McDonald  v.  Rainor,  8  Johns.  442 ;  Lep- 

admissible  as  evidence  of  tlie  facts  re-  ping  v.  Kedgewin,  1  Mod.  207. 

cited  in  them.     Holt  v.  Micrs,  9  C.  &  P.  *  N.   Eng.    Bank    v.   Lewis,   8    Pick. 

I'Jl.     [And  where,  in  a  decree  in  a  suit  113. 

in   equity,   there   has   been   inadvertcntli/  6  Estill  v.  Taul,  2  Yerg.  467,  470. 

inserted  a   direction   as   to  the  distribu-  ^  Dixon  v.  Sinclair,  4  Vt.  354. 

tion  of  a  certain  fund,  it  was  held  that  ^  Trevivan  v.  Lawrence,  1  Salk.  276 ; 

the  parties  interested  were  not  affected  B.  c.  3  Salk.  151 ;  Outram  v.  Morewood, 

thereby.     Holland  v.  Cruft,  3  Gray,  162,  3  F:ast,  346;  Kitchen  v.  Campbell,  3  Wils. 

187.1  304  ;  8.  c.  2  W.  Bl.  827  [Warren  i-.  Com- 

2  Hughes  V.  Blake,  1  Mason,  515,  519,  ings,  G  Cush.  103,  104  ;  Chamberlain  v. 
per  Story,  J.    [A  judgment  of  nonsuit  by  Carlisle,  6  Foster,  540]. 

the   Supreme    Court   of    Massachusetts,  *  Howard  v.  Mitchell,  14  Mass.  241 ; 

entered  by  consent  of  the  parties,  on  an  Adams  v.  Barnes,  17  Mass.  365.     So,  in 

agreed  statement  of  facts,  has  been  held  equity.      Dows  v.  McMichaei,  6  Paige, 

not  to  be  a  bar  to  a  suit  between  the  same  139. 


CHAP,  v.]  EECOEDS   AND   JUDICIAL  WRITINGS. 


573 


estoppel,  and  leaves  the  jury  at  liberty  to  find  according  to  the 
fact.^  This  proposition  is  admitted,  in  its  application  to  estop- 
pels arising  from  an  act  of  the  party  himself,  in  making  a  deed 
or  the  like  ;  but  it  has  been  denied  in  its  application  to  judg- 
ments recovered ;  for,  it  is  said,  the  estoppel,  in  the  former  case, 
is  allowed  for  the  benefit  of  the  other  party,  which  he  may 
waive ;  but  the  whole  community  have  an  interest  in  holding 
the  parties  conclusively  bound  by  the  result  of  their  own  litiga- 
tion. And  it  has  been  well  remarked,  that  it  appears  inconsist- 
ent, that  the  authority  of  a  res  judicata  should  govern  the  court, 
when  the  matter  is  referred  to  them  by  pleading,  but  that  dijury 
should  be  at  liberty  altogether  to  disregard  it,  when  the  matter 
is  referred  to  them  in  evidence  ;  and,  that  the  operation  of  so 
important  a  principle  should  be  left  to  depend  upon  the  technical 
forms  of  pleading  in  particular  actions.^  And  notwithstanding 
there  are  many  respectable  opposing  decisions,  the  weight  of 
authority,  at  least  in  the  United  States,  is  believed  to  be  in  favor 
of  the  position,  that  where  a  former  recovery  is  given  in  evidence, 
it  is  equally  conclusive,  in  its  effect,  as  if  it  were  specially  pleaded 
by  the  way  of  estoppel.^ 


1  Howard  v.  Mitchell,  14  Mass.  241 ; 
Adams  v.  Barnes,  17  Mass.  365.  So,  in 
equity.  Dows  v.  McMichael,  6  Paige, 
139. 

2  Phil.  &  Am.  on  Evid.  512. 

3  This  point  was  briefly,  but  very 
forcibly,  argued  by  Kennedy,  J.,  in 
Marsh  v.  Pier,  4  Rawle,  288,  289,  in  the 
following  terms  :  The  propriety  of  those 
decisions,  which  have  admitted  a  judg- 
ment in  a  former  suit  to  be  given  in 
evidence  to  the  jury,  on  the  trial  of  a  sec- 
ond suit  for  the  same  cause  between  the 
same  parties,  or  those  claiming  under 
them,  but  at  the  same  time  have  held 
that  the  jury  were  not  absolutely  bound 
by  such  judgment,  because  it  was  not 
pleaded,  may  well  be  questioned.  The 
maxim,  "  nemo  debet  bis  vexari  si  con- 
stet  curise  quod  sit  pro  una  et  eadem 
causa,"  being  considered,  as  doubtless  it 
was,  established  for  the  protection  and 
benefit  of  the  party,  he  may  therefore 
waive  it ;  and  unquestionably,  so  far  as 
he  is  individually  concerned,  there  can 
be  no  rational  objection  to  his  doing  so. 
But  then  it  ought  to  be  recollected  that 
the  community  has  also  an  equal  interest 
and  concern  in  the  matter,  on  account  of 
its  peace  and  quiet,  which  ought  not  to 
be  disturbed  at  the  will  and  pleasure  of 


every  individual,  in  order  to  gratify  vin- 
dictive and  litigious  feelings.  Hence  it 
would  seem  to  follow,  that,  wherever  on 
the  trial  of  a  cause  from  the  state  of  the 
pleadings  in  it,  the  record  of  a  judgment 
rendered  by  a  competent  tribunal  upon 
the  merits  in  a  former  action  for  the 
same  cause,  between  the  same  parties, 
or  those  claiming  under  them,  is  prop- 
erly given  in  evidence  to  the  jury,  that  it 
ought  to  be  considered  conclusively  bind- 
ing on  both  court  and  jury,  and  to  pre- 
clude all  further  inquiry  in  the  cause  ; 
otherwise  the  rule  or  maxim,  "expedit 
reipublicDB  ut  sit  finis  litium,"  which  is 
as  old  as  the  law  itself,  and  a  part  of  it, 
will  be  exploded  and  entirely  disregarded. 
But  if  it  be  part  of  our  law,  as  seems  to 
be  admitted  by  all  that  it  is,  it  appears 
to  me,  that  the  court  and  jury  are  clearly 
bound  by  it,  and  not  at  liberty  to  find 
against  such  former  judgment.  A  con- 
trary doctrine,  as  it  seems  to  me,  subjects 
the  public  peace  and  quiet  to  the  will  or 
neglect  of  individuals,  and  prefers  the 
gratification  of  a  litigious  disposition  on 
the  part  of  suitors,  to  the  preservation  of 
the  public  tranquillity  and  happiness. 
The  result,  among  other  things,  would 
be,  that  the  tribunals  of  the  State  would 
be  bound  to  give  their  time  and  attention 


574 


LAW   OF  EVIDENCE. 


[PAET  m. 


§  532.  Identity  of  issue.  When  a  former  judgment  is  shown 
by  way  of  bar,  whether  by  pleading,  or  in  evidence,  it  is  compe- 
tent for  the  plaintiff  to  reply,  that  it  did  not  relate  to  the  same 


to  the  trial  of  new  actions,  for  the  same 
causes,  tried  once  or  ot'tener,  in  former 
actions  between  the  same  parties  or  priv- 
ies, without  any  limitation,  otlier  than 
the  will  of  the  parties  litigant,  to  the 
great  delay  and  injury,  if  not  exclusion 
occasionally,  of  other  causes,  which  never 
have  passed  inrem  judicatam.  The  effect 
of  a  judgment  of  a  court,  having  juris- 
diction over  the  subject-matter  of  con- 
troversy between  the  parties,  even  as  an 
estoppel,  is  very  different  from  an  estop- 
pel arising  from  the  act  of  the  party 
himself,  in  making  a  deed  of  indenture, 
&c.,  which  may,  or  may  not,  be  enforced 
at  the  election  of  the  otlier  party  ;  be- 
cause, whatever  the  parties  have  done 
by  compact,  they  may  undo  by  the  same 
means.  But  a  judgment  of  a  proper 
court,  being  the  sentence  or  conclusion  of 
the  law,  upon  the  facts  contained  within 
the  record,  puts  an  end  to  all  further  liti- 
gation on  account  of  the  same  matter, 
and  becomes  the  law  of  the  case,  which 
cannot  be  changed  or  altered,  even  by 
the  consent  of  the  parties,  and  is  not 
only  binding  upon  them,  but  upon  the 
courts  and  juries,  ever  afterwards,  as 
long  as  it  shall  remain"  in  force  and  un- 
reversed." A  similar  view,  with  the  like 
distinction,  was  taken  by  Huston,  J.,  in 
Kilheffcr  v.  Herr,  17  S.  &  R.  325,  326. 
See  also  to  the  point,  that  the  evidence 
is  conclusive,  Shafer  v.  Stonehraker,  4 
G.  &  J.  345 ;  Cist  v.  Zigler,  16  S.  &  R. 
282;  Betts  v.  Starr,  5  Conn.  550,  553; 
Preston  v.  Harvey,  2  H.  &  Mun.  55 ;  I<]s- 
till  V.  Taul,  2  Yerg.  467,  471 ;  Iving  v. 
Chase,  15  N.  H.  9.  In  NfAU  York,  as 
remarked  by  Savage,  C.  J.,  in  Wood  v. 
Jackson,  8  Wend.  24,  25,  the  decisions 
have  not  been  uniform,  nor  is  it  perfectly 
clear,  wliere  tlie  weigiit  of  autliority  or  of 
argument  lies.  But  in  the  later  case  of 
Lawrence  v.  Hunt,  10  Wend.  83,  84,  the 
learned  judge,  who  delivered  the  opinion 
of  tlie  court,  seemed  inclined  in  favor  of 
the  conclusiveness  of  the  evidence.  [Tliis 
case  was  confirmed  in  Tiiompson  v.  Rob- 
erts, 24  How.  283.1  See,  to  the  same 
point,  Hancock  v.  Welch,  1  Stark.  347 ; 
Whatcly  v.  Menheim,  2  Esp.  008;  Strutt 
V.  Bovingdon,  5  ICsp.  56-59;  Rex  v.  St. 
Pancras,  Peake's  Cas.  220 ;  IJucliess  of 
Kingston's  case,  20  Howell's  St.  Tr.  538 ; 
Bird  V.  Randall,  3  Burr.  1353.  The  con- 
trary decision  of  Vooght  v.  Winch,  2  1?. 
&  Aid.  002,  was  cited,  but  without  be- 
ing approved,  by  Best,  C.  J.,  in  Stafford 


V.  Clark,  1  C.  &  P.  405,  and  was  again 
discussed  in  the  same  case,  2  Bing.  377  ; 
but  each  of  the  learned  judges  expressly 
declined  giving  any  opinion  on  tlie  point. 
This  case,  however,  is  reconciled  with 
otlier  English  cases,  by  Mr.  Smith,  on  the 
ground  that  it  means  no  more  than  this, 
that  where  the  party  might  plead  tlie  rec- 
ord by  estoppel,  but  does  not,  he  waives 
its  conclusive  character.  See  2  Smith's 
Leading  Cases,  434, 444, 445.  The  learned 
author,  in  the  note  here  referred  to,  has 
reviewed  the  doctrine  of  estoppels  in  a 
masterly  manner.  The  judgment  of  a 
court-martial,  when  offered  in  evidence 
in  support  of  a  justification  of  imprison- 
ment, by  reason  of  military  disobedience 
and  misconduct,  is  not  regarded  as  con- 
clusive; for  the  special  reasons  stated  by 
Lord  Mansfield  in  Wall  v.  McNamara,  1 
T.  R.  536.  See  ace.  Hannaford  v.  Hunn, 
2  C.  &  P.  148.  [This  question  is  care- 
fully examined  by  Redfield,  J.,  in  a  case 
in  Vermont  (Gray  v.  Pingry,  17  Vt.  419), 
and  the  earlier  cases  reviewed.  The 
form  of  pleading  an  estoppel  is  there 
considered,  and  tiiat  adopted  in  Shelly  v. 
Wright,  Willes,  9,  approved.  But  it  is 
there  said,  that  when  a  former  adjudica- 
tion is  relied  upon,  as  having  determined 
the  entire  controversy  now  in  hand,  it 
need  never  be  pleaded  as  an  estoppel, 
but  is  an  equitable  defence,  and  in  many 
actions  may  be  given  in  evidence  under 
the  general  issue  ;  and  when  required  to 
be  pleaded  specially,  is  not  required  to 
be  pleaded  with  greater  strictness  than 
any  other  plea  in  bar.  But  wiien  the 
former  trial  is  relied  upon  as  settling 
some  collateral  matter  of  fact,  involved 
in  the  i)resent  controversy,  it  must,  to 
be  coiwjlusive,  be  pleaded  strictly  as  an 
estoppel,  and  tlie  record  vouched  in  sup- 
port of  the  pica  must  contain,  upon  its 
face,  evidence  that  the  particular  fact 
was  in  issue,  and  was  found  by  tlie  triers. 
And  if  the  record  do  not  sliow  this,  and 
it  becomes  necessary  to  resort  to  oral 
evidence  to  show  it,  the  matter  cannot 
be  pleaded  as  an  estoppel,  but  it  becomes 
a  question  for  tiie  jury;  but,  nevertiie- 
less,  if  it  be  proved  to  the  satisfaction  of 
the  jury,  that  the  fact  was  determined 
in  tlie  former  controversy  between  tlie 
same  parties,  it  is  equally  conclusive, 
both  upon  the  parties  and  the  jury,  as 
if  it  appeared  of  record.  Perkins  v. 
Walker,  19  Vt.  144,  where  the  subject  is 
very  ably  discussed  by  Bennett,  J.j 


CHAP,  v.]  RECORDS   AND  JUDICIAL  "VTEITINGS. 


575 


property  or  transaction  in  controversy  in  the  action,  to  whicli  it 
is  set  up  in  bar ;  and  the  question  of  identity,  thus  raised,  is  to 
be  determined  by  the  jury,  upon  the  evidence  adduced.^  And 
though  the  declaration  in  the  former  suit  may  be  broad  enough 
to  include  the  subject-matter  of  the  second  action,  yet  if,  upon 
the  whole  record,  it  remains  doubtful  whether  the  same  subject- 
matter  were  actually  passed  upon,  it  seems  that  parol  evidence 
may  be  received  to  show  the  truth.^  So,  also,  if  the  pleadings 
present  several  distinct  propositions,  and  the  evidence  may  be  re- 
ferred to  either  or  to  all  with  the  same  propriety,  the  judgment 
is  not  conclusive,  but  only  j^rima  facie  evidence  upon  any  one  of 


1  So,  if  a  deed  is  admitted  in  pleadinof, 
proof  of  the  identity  may  still  be  required. 
Johnston  v.  Cottingham,  1  Armst.  Mac- 
artn.  &  Ogle,  11.  And  see  Garrott  v. 
Jolinson,  11  G.  &  J.  173.  [A  verdict  and 
judgment  for  B  in  an  action  at  law  brought 
against  him  by  A,  for  obstructing  the  tlow 
of  water  to  A's  mill,  in  which  action  B  put 
in  the  plea  of  "  not  guilty,"  and  a  speci- 
fication of  defence  denying  botli  A's  right 
and  any  injury  thereto,  are  no  bar  to  a 
suit  in  equity  by  A  against  B  to  restrain 
such  obstruct  ion,  unless  it  appear  either  by 
the  record,  or  by  extrinsic  evidence,  that 
B  prevailed  in  the  action  at  law  because 
A  had  failed  to  satisfy  the  jury  that  B  had 
violated  A's  rights.  McDowell  v.  Lang- 
don,  3  Gray,  518.  To  prove  that  the  24th 
day  of  a  certain  montli  was  a  reasonable 
time  in  which  to  perform  a  certain  con- 
tract, the  record  of  a  former  judgment  be- 
tween the  same  parties  establishing  that 
the  22d  day  of  the  same  month  was 
within  a  reasonable  time,  is  not  compe- 
tent evidence.  Sage  v.  McAlpin,  11 
Cash.  1G5. 

A  verdict  in  favor  of  the  defendant  in 
an  action  against  one  of  two  joint  trespass- 
ers, which  would  be  conclusive  evidence 
in  a  subsequent  action  against  him  by  the 
same  plaintiff,  will  not  be  conclusive  in  an 
action  by  such  plaintiff  against  the  co- 
trespasser.  Sprague  v.  Oakes,  19  Pick. 
455--458.  Judgment  and  satisfaction  in  an 
action  on  a  bond,  given  to  dissolve  an  at- 
tachment, constitute  no  defence  to  an 
action  on  a  bond,  given  to  obtain  a  review 
of  the  action  in  which  the  attachment  was 
made,  for  a  breach  of  a  condition  to  enter 
such  review  at  the  next  term  of  the  court. 
Lehan  v.  Good,  8  Gush.  302-309. 

To  an  action  for  goods  sold,  the  defend- 
ant answered  that  he  had,  in  part  pay- 
ment of  the  price,  given  a  special  promise 
to  pay  certain  debts  of  the  plaintiff,  and 
had  performed  that  promise,  and  that  he 


had  otherwise  paid  the  remainder  of  the 
price.  The  defendant  recovering  in  this 
action,  the  plaintiff  brought  an  action  on 
the  special  promise,  and  it  was  held  that 
the  judgment  for  the  defendant  in  the  for- 
mer action  was  no  bar  to  the  subsequent 
action  on  the  special  promise.  Harding  v. 
Hale,  2  Gray,  390,  400.  A  having  con- 
tracted to  convey  land  to  B,  conveyed  it 
to  C.  B  brought  a  bill  in  equity  against 
A  and  C  for  a  specific  performance  of  the 
contract,  but  judgment  was  rendered 
thereon  for  the  respondents,  A  and  C.  B 
subsequently  brought  an  action  at  law 
against  A  to  recover  damages  for  the 
breach  of  the  contract,  and  it  was  held 
that  the  judgment  in  the  equity  suit  was 
no  bar  to  the  action  at  law.  Buttrick  v. 
Holden,  8  Gush.  233-236.] 

2  It  is  obvious  that,  to  prove  what  was 
the  point  in  issue  in  a  previous  action  at 
common  law,  it  is  necessary  to  produce 
the  entire  record.  Foot  v.  GloA'er,  4  Blackf . 
313.  And  see  Morris  v.  Keyes,  1  Hill, 
540 ;  Glasscock  v.  Hays,  4  Dana,  69 
[Drake  i'.  Merrill,  2  Jones,  Law,  368.  A 
petitioner  for  partition,  claiming  title 
under  a  judgment,  may  show  by  parol  evi- 
dence that  his  name  was  incorrectly  st-ated 
in  the  judgment,  through  mistake  ;  and  it 
is  not  necessary  for  this  purpose  that  the 
mistake  should  be  previously  corrected 
on  the  record.  And  where  there  is  a  dif- 
ference between  the  description  of  the 
land  of  which  partition  is  demanded  in  a 
petition  for  partition,  and  the  description 
of  land  in  a  judgment  under  which  the 
petitioner  claims  title,  he  may  siiow  by 
parol  that  the  land  described  in  both  is 
the  same  ;  and  if  he  establishes  this  fact, 
then  the  former  judgment  is  conclusive 
evidence  of  his  title  thereto.  Wood  v. 
Le  Baron,  8  Gush.  471,  473  ;  Root  i-.  Fel- 
lowes,  6  Gush.  29;  Washington  Steam 
Packet  Co.  v.  Sickles,  24  How.  833]. 


576 


LAW   OF   EVIDENCE. 


[PART  lU 


the  propositions,  and  eYidence  aliunde  is  admissible  to  rebut  it.^ 
Thus  where  the  plaintiff  in  a  former  action  declared  upon  a  prom- 
issory note,  and  for  goods  sold,  but  upon  executing  the  writ  of 
inquiry,  after  judgment  by  default,  he  was  not  prepared  with 
evidence  on  the  count  for  goods  sold,  and  therefore  took  his 
damages  only  for  the  amount  of  the  note ;  he  was  admitted,  in  a 
second  action  for  the  goods  sold,  to  prove  the  fact  l)y  parol,  and 
it  was  held  no  bar  to  the  second  action.^  And  upon  the  same 
principle,  if  one  wrongfully  take  another's  horse  and  sell  him, 
applying  the  money  to  his  own  use,  a  recovery  in  trespass,  in  an 
action  by  the  owner  for  the  taking,  would  be  a  bar  to  a  subse- 
quent action  of  assumpsit  for  the  money  received,  or  for  the  price,- 
the  cause  of  action  being  proved  to  be  the  same.^     But  where,  from 


1  Henderson  v.  Kenner,  1  Richardson, 
574. 

2  Seddon  v.  Tiitop,  6  T.  R.  608  ;  Had- 
ley  V.  Green,  2  Tyrwh.  390.  See  ace. 
Bridge  c.  Gray,  14  Pick.  25;  Webster  v. 
Lee,  5  Mass.  o34  ;  Ravee  v.  Farmer,  4  T. 
R.  140  ;  Tliorpe  v.  Cooper,  5  Ring.  116  ; 
Phillips  V.  Berick,  16  Johns.  136.  But  if 
the  jury  have  passed  upon  the  claim,  it  is 
a  bar,  though  they  may  have  disallowed  it 
for  want  of  sufficient  evidence.  Stafford 
V.  Clark,  2  Bing.  377,  382,  per  Best.  C.  J.  ; 
Phillips  V.  Berick,  supra.  So,  if  the  fact 
constituting  tlie  basis  of  the  claim  was 
proved,  among  other  things,  before  an 
arbitrator,  but  he  awarded  no  damages  for 
it,  none  having  been  at  that  time  expressly 
claimed.  Dunn  i-.  Murray, !)  B.  &  C.  780. 
So,  if  he  sues  for  part  only  of  an  entire 
and  indivisible  claim  ;  as,  if  one  labors  for 
another  a  year,  on  the  same  hiring,  and 
sues  for  a  month's  wages,  it  is  a  bar  to 
tlie  whole.  Miller  v.  Covert,  1  Wend. 
487.  But  it  seems  that,  generally,  a  run- 
ning account  for  goods  sold  and  delivered 
does  not  constitute  an  entire  demand. 
Badger  v.  Titcomb,  15  Pick.  415.  Conlra, 
Guernsey  i'.  Carver,  8  Wend.  402.  So, 
if,  having  a  claim  for  a  greater  amount 
consisting  of  several  distinct  particulars, 
he  sues  in  an  inferior  court,  and  takes 
judgment  for  a  less  amount.  Bagot  v. 
Williams,  3  B.  &  C.  235.  So,  if  he  ob- 
tains an  interlocutory  judgment  for  his 
whole  claim,  but,  to  avoid  delay,  takes  a 
rule  to  compute  on  one  item  only,  and  en- 
ters a  luille.  jiiosiQui  as  to  the  other.  Bow- 
den  V.  Home,  7  Bing.  710. 

8  17  Pick.  13,  per  Putnam,  J.  ;  Young 
V.  Black,  7  Cranch,  505  ;  Livcrmore  v. 
Herschell,  8  Pick.  33  [Norton  v.  Do- 
herty,  3  Gray,  3721.  Whether  parol  evi- 
dence would  be  admissible,  in  such  case, 


to  prove  that  the  damages  awarded  in 
trespass  were  given  merely  for  the  tortious 
taking,  without  including  the  value  of  the 
goods,  to  which  no  evidence  had  been  ot- 
tered, qmere  ;  and  see  Loomis  v.  Green, 
7  Greenl.  386.  [The  assignees  of  an  in- 
solvent debtor  brought  a  bill  in  equity  to 
set  aside  conveyances  of  property  made 
by  the  debtor  to  the  respondents,  as 
made  and  taken  either  without  considera- 
tion and  in  fraud  of  creditors,  or  by  way 
of  unlawful  preference,  contrary  to  the 
insolvent  laws.  The  bill  charged  the  re- 
spondents in  the  common  form  with  com- 
bining and  confederating  with  divers 
other  persons  to  the  complainants  un- 
known, and  prayed  for  relief  against  the 
respondents  jointly  and  severally ;  and 
the  court,  after  a  hearing  upon  the  merits, 
decreed  that  the  demands  set  xip  by  the 
respondents,  in  their  several  answers,  were 
justly  due  them  from  the  insolvent,  and 
that  the  conveyances  of  property  in  pay- 
ment thereof  were  not  made  in  violation 
of  the  insolvent  laws,  and  dismissed  the 
bill.  The  assignees  subsequently  brought 
an  action  of  trover  against  one  of  the  re- 
spondents in  the  equity  suit,  for  the  same 
property,  and  it  was  held  that  the  decree 
in  that  suit  was  a  bar  to  the  action  of 
trover.  Bigelow  v.  Winsor,  1  Gray,  200, 
303 ;  Shaw,  C.  J.,  in  delivering  the  opin- 
ion of  the  court  in  this  case,  said:  "One 
valid  judgment  by  a  court  of  competent 
jurisdiction,  between  the  same  parties, 
u])on  considerations  as  well  of  justice  as 
of  public  policy,  is  held  to  be  conclusive, 
except  where  a  review,  an  api)eal,  or  re- 
liearing  in  some  form,  is  allowed  ajul  reg- 
ulated by  law.  No  man  is  to  be  twice 
vexed  with  the  same  controversy.  '  In- 
terest reipublicae  ut  finis  sit  litium.' 
"  To  ascertain  whether  a  past  judg- 


CHAP,  v.]  RECOEDS   AXD   JUDICIAL   WRITINGS. 


677 


the  nature  of  the  two  actions,  the  cause  of  action  cannot  be  the 
same  in  both,  no  averment  will  be  received   to   the  contrary. 


ment  is  a  bar  to  another  suit,  we  are  to 
consider,  first,  whether  the  subject-matter 
of  legal  controversy,  which  is  proposed  to 
be  brought  before  any  court  for  adjudica- 
tion, has  been  drawn  in  question,  and 
within  tiie  issue  of  a  former  judicial  pro- 
ceeding, wliicli  has  terminated  in  a  regu- 
lar judgment  on  the  merits,  so  that  the 
whole  question  may  have  been  determined 
by  that  adjudication  ;  secondly,  whetlier 
the  former  litigation  was  between  the 
same  parties,  in  the  same  right  of  ca- 
pacity litigating  in  tlie  subsequent  suit, 
or  tlieir  privies  respectively,  claiming 
through  or  under  them,  and  bound  and 
estopped  by  tliat  which  would  bind  and 
estop  those  parties ;  and,  thirdly,  whether 
the  former  adjudication  was  had  before  a 
court  of  competent  jurisdiction  to  hear 
and  decide  on  the  whole  matter  of  contro- 
versy, embraced  in  the  subsequent  suit. 

"  It  is  no  objection  that  the  former  suit 
embraced  more  subjects  of  controversy, 
or  more  matter  tlian  the  present ;  if  the 
entire  subject  of  the  present  controversy 
was  embraced  in  it,  it  is  sufficient,  it  is 
res  judicata. 

"  Nor  is  it  necessary  that  the  parties 
should  be  in  all  respects  the  same.  If  by 
law  a  judgment  could  have  been  given  in 
that  suit  for  this  plaintiff  against  tliis  de- 
fendant, for  the  present  cause  of  action,  it 
has  passed  into  judgment.  Suppose  tres- 
pass for  assault  and  battery  against  five, 
and  verdict  and  judgment  for  all  the  de- 
fendants ;  then  a  new  suit  for  the  same  tres- 
pass, by  tlie  same  plaintiff,  against  one  of 
the  defendants,  tlie  former  judgment  is  a 
good  bar.  In  actions  of  tort,  the  cause  of 
action  is  several,  as  well  as  joint  ;  and  if, 
upon  the  evidence,  one  defendant  was 
chargeable  with  the  trespass,  a  verdict  and 
judgment  might  have  been  rendered 
against  him  severally  in  the  first  suit, 
although  the  other  defendants  had  a 
verdict. 

"  Nor  is  it  essential,  that  the  two  tri- 
bunals should  have  the  same  jurisdiction 
in  other  respects,  provided  the  court  was 
of  competent  jurisdiction  to  adjudicate 
upon  the  entire  matter  in  controversy,  in 
the  subsequent  suit.  Whether  it  be  a 
court  of  law  or  equity,  of  admiralty  or  of 
probate,  if  in  the  matter  in  controversy 
between  the  parties,  with  the  same  object 
in  view,  that  of  remedj^  between  them, 
the  court  had  jurisdiction  to  decide,  it  is 
a  legal  adjudication  binding  on  these 
parties." 

To  render  a  former  judgment  between 


37 


the  same  parties  admissible  in  evidence  in 
another  action  pending  between  them,  it 
must  appear  tliat  the  fact  sought  to  be 
proved  by  tiie  record  was  actually  passed 
upon  bj'  the  jury  in  finding  their  verdict 
in  the  former  suit.  It  is  not  necessary 
tliat  it  should  liave  been  directly  and  spe- 
cifically put  in  issue  by  the  pleadings  ; 
but  it  is  suflScient  if  it  is  shown  tliat  the 
question  which  was  tried  in  the  former 
action  between  the  same  parties  is  again 
to  be  tried  and  settled,  in  the  suit  in 
which  the  former  judgment  is  offered  in 
evidence.  And  parol  evidence  is  admissi- 
ble to  show  that  the  same  fact  was  sub- 
mitted to,  and  passed  upon  by,  the  jury  in 
the  former  action ;  because,  in  many 
cases,  the  record  is  so  general  in  its  char- 
acter, that  it  could  not  be  known,  without 
the  aid  of  such  proof,  what  the  precise 
matter  of  controversy  was  at  the  trial  of 
the  former  action.  Thus,  where  tlie  fact 
sought  to  be  established  by  the  plaintiffs 
in  a  suit  is  the  existence  of  a  copartner- 
ship between  the  defendants,  under  a 
certain  name,  a  former  judgment  recov- 
ered by  the  same  plaintiffs  against  the 
same  defendants,  as  copartners,  under 
such  name,  on  a  note  given  at  the  same 
time  with  the  one  in  suit,  is  admissible, 
although  not  conclusive,  evidence  of  that 
fact.  Dutton  v.  Woodman,  9  Gush.  255, 
261;  Eastman  v.  Cooper,  15  Pick.  276, 
279,  285.  But,  in  an  action  of  replevin  for  , 
a  piano,  a  former  judgment  between  the 
same  parties,  in  an  action  of  ti-espass  quare 
clausum,  in  which  the  taking  away  of  the 
same  piano  was  alleged  by  way  of  aggra- 
vation, is  not  conclusive  as  to  the  owner- 
ship of  tlie  piano ;  as  the  question  of  the 
title  to  tlie  piano  was  only  indirectly  in- 
volved. Gilbert  v.  Thompson,  9  Cush. 
348,  350;  Potter  v.  Baker,  19  N.  H.  166; 
Lamprey  v.  Mudd,  9  Foster,  299.  A 
judgment  for  the  demandant  in  a  real 
action  with  possession  taken  under  it,  will 
preclude  the  tenant  in  that  action  from 
afterwards  asserting  against  such  demand- 
ant any  personal  property  in  the  build- 
ings wliicii  he  had  erected  on  tlie  land. 
Doak  v.  Wiswell,  33  Maine,  355.  See 
Small  r.  Leonard,  26  Yt.  209;  Morgan 
V.  Barker,  Id.  602  ;  Briggs  v.  Wells,  12 
Barb.  -567.  A  sued  out  a  writ  of  entry  to 
foreclose  a  mortgage  given  by  B  to  secure 
the  payment  of  five  promissory  notes. 
B  defended,  pleading  the  general  issue, 
and  specifying  certain  grounds  of  defence. 
A  trial  was  had,  and  a  verdict  found  for  A, 
upon  which  conditional  judgment  was 


578 


LAW   OF  EVIDENCE. 


[PAET  lU. 


Therefore,  in  a  writ  of  right,  a  plea  in  bar  that  the  same  title  had 
been  the  sole  subject  of  litigation  in  a  former  action  of  trespass 
quare  dausiim  /regit,  or  in  a  former  writ  of  entry,  between  the 
same  parties,  or  others  privy  in  estate,  was  held  to  be  a  bad  plea.^ 
Whether  the  judgment  in  an  action  of  trespass,  upon  the  issue  of 
Uberum  tenementum,  is  admissible  in  a  subsequent  action  of  eject- 
ment between  the  same  parties,  is  not  perfectly  clear  :  but  the 
weight  of  American  authority  is  in  favor  of  admitting  the  evi- 
dence.2 

§  533.  Former  recovery  in  actions  of  tort.  The  effect  of  former 
recover^/  has  been  very  much  discussed,  in  the  cases  where  differ- 
ent actions  in  tort  have  successively  been  brought,  in  regard  to  the 
same  chattel ;  as,  for  example,  an  action  of  trover,  brought  after 
a  judgment  in  trespass.  Here,  if  title  to  the  property  was  set  up 
by  the  defendant  in  the  first  action,  and  it  was  found  for  him,  it 
is  clearly  a  bar  to  a  second  action  for  the  same  chattel ;  ^  even 


subsequently  rendered  for  liim  ;  and  tlie 
amount  tliereof  not  being  paid,  A  took 
possession  of  tlie  mortgaged  premises. 
Pending  the  foregoing  proceedings,  A 
brought  an  action  against  B  on  one  of  the 
five  promissory  notes,  and  B  put  in  his 
answer,  defending  on  tiie  same  grounds 
as  he  had  defended  the  action  on  tlie 
mortgage.  The  suit  on  the  note  came  to 
trial  after  judgment  was  entered  in  the 
former  action  ;  and  it  was  held,  that  B  was 
estopped  by  said  judgment  from  again 
availing  himself  of  the  grounds  of  de- 
fence upon  wliich  he  had  before  insisted. 
Burke  v.  Miller,  4  Gray,  114,  116.  See 
also  Sargent  v.  Fitzpatiick,  Id.  511,  514. 
A  contracted  with  B  to  forward  and  de- 
liver certain  goods  belonging  to  A.  B 
intrusted  them  to  a  carrier,  who  failed  to 
deliver  them.  A  brought  trover  against 
the  carrier;  and  the  carrier  obtained  in 
this  action  a  judgment  on  the  merits 
against  A.  B  also  sued  the  carrier  for 
the  non-delivery  of  the  goods,  and  it  was 
held  tluit  the  judgment  in  the  suit  brought 
by  A  was  a  bar  to  tlie  suit  by  B.  Greene 
(J."  Clarke,  2  Kernan.  '6A'd.  To  an  action 
by  A  against  H  on  a  ])rotnissory  note 
given  by  B  to  A  in  jjayment  for  goods,  B 
pleaded  want  of  consideration  by  reason 
of  false  rei)resentati()ns  of  A  concerning 
the  value  of  such  goods.  A  recovered 
judgment  for  part  only  of  the  note.  It 
was  held  that  this  was  a  bar  to  a  subse- 
quent action  brought  by  B  against  A  to 
recoverdamages  forsuch  false  representa- 
tions. Burnett  y.  Smith,  4  Gray,  50.  In 
replevin  by  a  tenant  against  bis  landlord, 


who  had  distrained  for  rent  in  arrear,  it 
was  held  that  a  verdict  in  sunmiary  pro- 
ceedings instituted  by  the  landlord,  to  re- 
move the  tenant  for  default  in  the  payment 
of  rent,  that  no  rent  was  due,  was  conclu- 
sive on  that  point, — the  same  rent  being 
in  question  in  both  proceedings.  White 
V.  Coats  worth,  2  Selden  (N.  Y.),  137.  An 
action  brought  for  a  part  of  an  entire 
and  indivisible  demand,  and  a  recovery 
therein,  will  bar  a  subsequent  suit  for  the 
residue  of  the  same  demand.  Staples  v. 
Goodrich,  21  Barb.  317 ;  Warren  v. 
Comings,  6  Cush.  40.3. 

Where  it  appears  at  a  trial  in  this  State 
(New  York),  that,  in  a  former  suit  be- 
tween the  same  parties  in  a  sister  State, 
the  causes  of  action  here  specially  de- 
clared on,  and  all  growing  out  of  the  same 
subject-matter,  could  have  been  proved  in 
that  suit,  and  that  the  same  proof  offered 
liere  was,  in  the  former  suit,  properly  in- 
troduced and  considered  on  the  merits, 
and  judgment  rendered  for  the  defendant, 
such  judgment  is  a  bar  to  the  second  suit. 
Baker  r.^Kand,  13  Barb.  152.] 

1  Arnold  i'.  Arnold,  17  Tick.  4;  Bates 
V.  Thompson,  Id.  14,  n.  ;  Bennett  v. 
Holmes,  1  Dev.  &  Bat.  480. 

•^  Hoey  r.  Furman,  1  Barr,  295.  And 
see  Meredith  v.  Gilpin,  6  Price,  140  ;  Kerr 
V.  Chess,  7  Watts,  371;  Foster  v.  Mc- 
Divit,  9  Watts,  349. 

3  Putt  I'.  Poster,  2  Mod.  218;  3  Mod. 
1,  8.  c.  noni.  Putt  V.  Kawstern  ;  see  2 
Show.  211 ;  Skin.  40,  57  ;  s.  c.  T.  Raym. 
472.  (See  also  Greely  v.  Smith,  3  W.  & 
M.  230.] 


CHAP,  v.]  RECORDS   AND   JUDICIAL  WRITINGS. 


579 


though  brought  against  one  not  a  party  to  the  former  suit,  but 
an  accomplice  in  the  original  taking,^  So,  a  judgment  for  the 
defendant  in  trover,  upon  trial  of  the  merits,  is  a  bar  to  an  action 
for  money  had  and  received,  for  the  money  arising  from  the  sale 
of  the  same  goods.^  But,  whether  the  plaintiff,  having  recovered 
judgment  in  trespass,  without  satisfaction,  is  thereby  barred  from 
afterwards  maintaining  trover  against  another  person  for  the 
same  goods,  is  a  point  upon  which  there  has  been  great  diversity 
of  opinion.  On  the  one  hand,  it  is  said  that,  by  the  recovery  of 
judgment  in  trespass  for  the  full  value,  the  title  to  the  property  is 
vested  in  the  defendant,  the  judgment  being  a  security  for  the 
price  ;  and  that  the  plaintiff  cannot  take  it  again,  and  there- 
fore cannot  recover  the  value  of  another.^  On  the  other  hand, 
it  is  argued,  that  the  rule  of  transit  in  rem  judicatam  extends  no 
farther  than  to  bar  another  action  for  the  same  cause  against  the 
same  party  ;  ^  that,  on  principle,  the  original  judgment  can  imply 
nothing  more  than  a  promise  by  the  defendant  to  pay  the  amount, 
and  an  agreement  by  the  plaintiff  that,  upon  payment  of  the 
money  by  the  defendant,  the  chattel  shall  be  his  own  ;  and  that 
it  is  contrary  to  justice  and  the  analogies  of  the  law,  to  deprive  a 
man  of  his  property  without  satisfaction,  unless  by  his  express 
consent.  "  Solutio  pretii  emptionis  loco  habetur."  The  weight 
of  authority  seems  in  favor  of  the  latter  opinion.^ 


1  Terrers  v.  Arden,  Cro.  El.  668 ;  s.  c. 
6  Co.  7. 

2  Kitchen  v.  Campbell,  3  Wils.  304; 
8.  c.  2  W.  Bl.  827. 

3  Broome  i-.  Wooton,  Yelv.  67 ;  Ad- 
ams I'.  Broughton,  2  Stra.  1078;  s.  c. 
Andrews,  18;  White  v.  Philbrick,  5 
Greenl.  147 ;  Rogers  v.  Thompson,  1 
Rice,  60. 

*  Drake  v.  Mitchell, 
Campbell  v.  Phelps,  1 
Wilde,  J. 

s  Putt  V.  Rawstern,  3  Mod.  1 ;  Jenk. 
Cent.  p.  189;  1  Shep.  Touchst.  227; 
More  V.  Watts,  12  Mod.  428;  s.  c.  1 
Ld.  Raym.  614;  Luttrell  v.  Reynell,  1 
Mod.  282;  Bro.  Abr.  tit.  Judgm.  pi.  98; 
Moreton's  case,  Cro.  El.  30 ;  Cooke  v. 
Jenner,  Hob.  6(5 ;  Livingston  v.  Bishop,  1 
Johns.  290  ;  Rawson  v.  Turner,  4  Johns. 
425;  2  Kent,  Comm.  388;  Curtis  v. 
Groat,  6  Jolins.  168  ;  Corbett  et  al.  v. 
Barnes,  W.  Jones,  377  ;  Cro.  Car.  443 ; 
s.  c.  7  Vin.  Abr.  341,  pi.  10;  Barb  v. 
Fish,  5  West.  Law  Journ.  278.  The  fore- 
going authorities  are  cited  as  establishing 


3    East,    258; 
Pick.    70,   per 


principles  in  opposition  to  the  doctrine  of 
Broome  v.  Wooton.  The  following  cases 
are  direct  adjudications  to  tlie  contrary 
of  that  case.  Sanderson  v.  Caldwell,  2 
Aiken,  105;  Osterhout  v.  Roberts,  8 
Cowen,  43;  Elliott  v.  Porter,  5  Dana, 
299.  See  also  Campbell  i;.  Plielps,  1 
Pick.  70,  per  Wilde,  J. ;  Claxton  v.  Swift, 
2  Show.  441,  494;  Jones  v.  McNeil,  2 
Bail.  46G ;  Cooper  v.  Shepherd,  2  M.  G. 
&  S.  266.  The  just  deduction  from  all 
the  authorities,  as  well  as  the  right  con- 
clusion upon  principle,  seems  to  be  this, 
—  that  the  jtidf/ment  in  trespass  or  trover 
will  not  transfer  the  title  of  the  goods  to 
the  defendant,  althougli  it  is  pleadable  in 
bar  of  any  action  afterwards  brought  by 
the  same  plaintiff,  or  those  in  privity 
with  him,  against  the  same  defendant,  or 
those  in  privity  with  him.  See  3  Am. 
Law  Mag.  pp.  49-57.  And  as  to  the  orig- 
inal parties,  it  seems  a  just  rule,  appli- 
cable to  all  personal  actions,  that  wher- 
ever two  or  more  are  ViaiAe  joiutly  and  not 
severally,  a  judgment  against  one,  though 
withoiit  satisfaction,  is  a  bar  to  another 


580  LAW   OF  EVIDENCE.  [PAET  HT. 

§  534.  Judgment  conclusive,  if  point  at  issue  vras  necessarily  in- 
cluded. It  is  not  necessary,  to  the  conclusiveness  of  the  former 
judgment,  that  issue  should  have  been  taken  upon  the  precise  point 
which  is  controverted  in  the  second  trial ;  it  is  sufficient,  if  that 
point  was  essential  to  the  finding  of  the  former  verdict.  Thus, 
wliere  the  parish  of  Islington  was  indicted  and  convicted  for  not 
repairing  a  certain  highway,  and  afterwards  the  parish  of  St. 
Pancras  was  indicted  for  not  repairing  the  same  highway,  on  the 
ground  that  the  line  dividing  the  two  parishes  ran  along  the  mid- 
dle of  the  road  ;  it  was  held,  that  the  former  record  was  admissible 
and  conclusive  evidence  for  the  defendants  in  the  latter  case,  to 
show  that  the  road  was  wholly  in  Islington  ;  for  the  jury  must 
have  found  that  it  was  so,  in  order  to  find  a  verdict  against  the 
defendants.^ 

§  535.  Who  are  parties.  We  have  already  observed,  in  gen- 
eral, that  parties  in  the  larger  legal  sense,  are  all  persons  having  a 
right  to  control  the  proceedings,  to  make  defence,  to  adduce  and 
cross-examine  witnesses,  and  to  appeal  from  the  decision,  if  any 
appeal  lies.  Upon  this  ground,  the  lessor  of  the  plaintiff  in  eject- 
ment, and  the  tenant,  are  the  real  parties  to  the  suit,  and  are  con- 
cluded in  any  future  action  in  their  own  names,  by  the  judgment 
in  that  suit.^  So,  if  there  be  a  trial  between  B.'s  lessee  and  E., 
who  recovers  judgment ;  and  afterwards  another  trial  of  title  to 
the  same  lands,  between  E.'s  lessee  and  B.,  the  former  verdict 
and  judgment  will  be  admissible  in  evidence  in  favor  of  E.'s  les- 
see against  B. ;  for  the  real  parties  in  both  cases  were  B.  and  E.^ 

action  against  any  of  the  others  for  the  crease  of  the  assessment,  the  defendant 

same  cause  ;  but  it  is  not  a  bar  to  an  ac-  was  precluded  from  setting  up  a  rigiit  in 

lion   against  a  stranger.     As  far  as   an  himself  to  flow  the  land,  for  the  right 

action  in  the  form  of  tort  can  be  said  to  must  necessarily  have  l)een  determined 

be  exclusively  joint  in  its   nature,  tiiis  in  the   previous  proceedings.     Adams  v. 

rule  may  govern  it,  but  no  farther.    This  Pearson,  7  Pick.  341.     |Tiie  judgment  is 

doctrine,  as  applicable  to  joint  contracts,  conclusive,  not  only  as  to  tlie  precise  facts 

has  been  recently  discussed  in  England,  involved  directly  in  the  former  issue,  but 

in  the  case  of  King  v.  Hoare,  \?j  M.  &  W.  as  to  all  facts  incidentally  involved,  and 

494,  in  which  it  was  held  that  the  judg-  which  were  in  fact  passed  upon,  as  the 

ment  against  one  alone  was  a  bar  to  a  foundation  of  the  former  decision.    Reg. 

subsequent  action  against  the  other.  v.  llartington,  4  Ellis  &  Bl.  780.] 

1  Hex    V.    St.    Pancras.   Peake's   Cas.  ^  Doe  v.  Huddart,  2  Cr.  M.  &  R.  316, 

219;  '2  Saimd.  159,  note  (10),  by    Wil-  322;  Doe  i).  Preece,  1  Tyrw.  410;  Aslin 

li.ams.     And  see    Andrews  v.   Brown,  3  v.     Parkin,    2    Burr.    Gt55 ;    Wright     v. 

Cush.  130.     So,  where,  upon  a  complaint  Tatham,  1   Ad.  &  El.  3,  19;  Bull.  N.  P. 

for  flowing  the  plaintitt"8  lauds,  under  a  232;  Graves  v.  Joice,  5  Cowen,  261,  and 

particular  statute,  damages  were  awarded  cases   there   cited    [Amick  t;.  Oyler,   25 

for  the  past,  and  a  prospective  assessment  Penn.  St.  50tj]. 

of  damages  made  for  the  future,  flowage;  ^  Bull.  N.   P.  232;    Calhoim  i'.  Dun- 

upon  a  subsequent  application  for  an  in-  ning,  4  Dall.  120.     So,  a  judgment  in 


CHAP.  V.j  KECORDS   AND  JUDICIAL  WRITINGS.  581 

§  536.  Privies.  The  case  of  privies,  which  has  already  been 
mentioned,  is  governed  by  principles  similar  to  those  which  have 
been  stated  in  regard  to  admissions  ;  ^  the  general  doctrine  being 
this,  that  the  person  who  represents  another,  and  the  person  who 
is  represented,  have  a  legal  identity  ;  so  that  whatever  binds  the 
one,  in  relation  to  the  subject  of  their  common  interest,  binds  the 
other  also.  Thus,  a  verdict  and  judgment  for  or  against  the  an- 
cestor bind  the  heir.^  So,  if  several  successive  remainders  are 
limited  in  the  same  deed,  a  judgment  for  one  remainder-man  is 
evidence  for  the  next  in  succession.^  But  a  judgment,  to  which 
a  tenant  for  life  was  a  party,  is  not  evidence  for  or  against  the 
reversioner,  unless  he  came  into  the  suit  upon  aid  prat/er.^  So, 
an  assignee  is  bound  by  a  judgment  against  the  assignor,  prior  to 
the  assignment.^  There  is  the  like  privity  between  the  ancestor 
and  all  claiming  under  him,  not  only  as  heir,  but  as  tenant  iu 
dower,  tenant  by  the  curtesy,  legatee,  devisee,  &c.^  A  judg- 
ment of  ouster,  in  a  quo  warranto,  agaipst  the  incumbent  of  an 
office,  is  conclusive  evidence  against  those  who  derive  their  title 
to  office  under  him.'^  Where  one  sued  for  diverting  water  from 
his  works,  and  had  judgment ;  and  afterwards  he  and  another 
sued  the  same  defendants  for  a  similar  injury  ;  the  former  judg- 
ment was  held  admissible  in  evidence  for  the  plaintiffs,  being 
prima  facie  evidence  of  their  privity  in  estate  with  the  plaintiff  in 
the  former  action.^  The  same  rule  applies  to  all  grantees,  they  be- 
ing in  like  manner  bound  by  a  judgment  concerning  the  same  land, 
recovered  by  or  against  their  grantor,  prior  to  the  conveyance.^ 

§  537.  Judgments  iu  criminal  cases.  Upon  the  foregoing  princi- 
ples, it  is  obvious  that,  as  a  general  rule,  a  verdict  and  judgment 
in  a  criminal  case,  though  admissible  to  establish  the  fact  of  the 
mere  rendition  of  the  judgment,  cannot  be  given  in  evidence  in  a 
civil  action,  to  establish  the  facts  on  which  it  was  rendered.^^  If 
the  defendant  was  convicted,  it  may  have  been  upon  the  evidence 

trespass  against  one  who  justifies  as  the  '  Adams  v.  Barnes,  17  Mass.  365. 

servant  of  J.  S.  is  evidence  against  an-  ^  Locke   i?.    Norborne,    3   Mod.    141 ; 

other  defendant  in  anotlier  action,  it  ap-  Outrara  v.  Morewood,  3  East,  353. 

pearing  that  he  also  acted  by  the  com-  "^  Rex  v.  Mavor,  &c.  of  York,  6  T.  R. 

mand  of  J.   S.,  wlio  was  considered  the  66,  72,  76 ;  Bulf.  N.  P.  231 ;  Rex  v.  Heb- 

real  party  in  both  cases.     Kinnersly  v.  den,  2  Stra.  1109,  n.  (1). 

Orpe,  2  Doug.  517  ;  1  Doug.  56.  8  Blakemore  v.  Glamorganshire  Canal 

1  Supra,  §§  180,  189,  523.  Co.,  2  C.  M.  &  R.  133. 

'-  Locke  y.  Norborne,  3  Mod.  141.  9  Foster  v.  E.  of  Derby,  1  Ad.  &  El. 

3  Bull.  N.  P.  232  ;  Pyke  v.  Crouch,  1  787,  per  Littledale,  J. 

Ld.  Raym.  730.  i"  Mead  v.  Boston,  3  Cush.  404.     In 

*  Bull.  N.  P.  232.  one  case  it  was  held,  that  the  deposition 


582 


LAW   OF   EVIDENCE. 


[PAUT  m. 


of  the  very  plaintiff  in  the  civil  action  ;  and  if  he  was  acquitted, 
it  may  have  been  by  collusion  with  the  prosecutor.  But  beside 
this,  and  upon  more  general  grounds,  there  is  no  mutuality  ;  the 
parties  are  not  the  same  ;  neither  are  the  rules  of  decision  and 
the  course  of  proceeding  the  same.  The  defendant  could  not 
avail  himself,  in  the  criminal  trial,  of  any  admissions  of  the  plain- 
tiff in  the  civil  action  ;  and,  on  the  other  hand,  the  jury  in  the 
civil  action  must  decide  upon  the  mere  preponderance  of  evidence ; 
whereas,  in  order  to  a  criminal  conviction,  they  must  be  satisfied 
of  the  party's  guilt,  beyond  any  reasonable  doubt.  The  same 
principles  render  a  judgment  in  a  civil  action  inadmissible  evi- 
dence in  a  criminal  j^rosecution.^ 

§  538.  Judgments  as  facts.  But,  as  we  have  before  remarked,^ 
the  verdict  and  judgment  in  any  case  are  always  admissible  to 
prove  the  fact^  that  the  judgment  was  rendered^  or  the  verdict 
given;  for  there  is  a  material  difference  between  proving  the 
existence  of  the  record  and  its  tenor,  and  using  the  record  as  the 


of  a  witness,  taken  before  the  coroner,  on 
an  inquiry  touching  the  death  of  a  person 
killed  by  a  collision  between  two  vessels, 
was  receivable  in  evidence,  in  an  action 
for  the  negligent  management  of  one  of 
tliem,  if  the  witness  be  shown  to  be  be- 
yond sea.  Sills  v.  Brown,  9  C.  &  P.  601, 
per  Coleridge,  J.  But  qucBie,  and  see  2 
Phil.  Evid.  74,  75 ;  infra,  §  553. 

1  1  Bull.  N.  P.  238 ;  Rex  v.  Boston,  4 
East,  672  ;  Jones  v.  White,  1  Stra.  68,  per 
Pratt,  J.  Some  of  the  older  authorities 
have  laid  much  stress  upon  the  question, 
whether  the  plaintiff  in  the  civil  action 
was  or  was  not  a  witness  on  the  indict- 
ment. Upon  which  Parke,  B.,  in  Blakc.- 
more  v.  Glamorganshire  Canal  Co.,  2  C. 
M.  &  R.  13y,  remarked  as  follows  :  "  The 
case  being  brought  within  the  general 
rule,  that  a  verdict  on  the  matter  in  issue 
is  evidence  for  and  against  parties  and 
privies,  no  exception  can  be  allowed  in 
the  particular  action,  on  the  ground  that 
a  circumstance  occurs  in  it,  which  forms 
one  of  the  reasons  why  verdicts  between 
different  parties  are  held  to  be  inadmis- 
sible, any  more  tiian  the  absence  of  all 
such  circumstanires,  in  a  particular  case, 
would  be  allowed  to  form  an  exception 
to  the  general  rule,  that  verdicts  between 
other  parties  cannot  be  received.  It  is 
mucli  wiser,  and  more  convenient  for  the 
administration  of  justice,  to  abide  as 
much  as  possihle  by  general  rules."  A 
record  of  judgment  in  a  criminal  case, 
upon  a  plea  of  "  guilty,"  is  admissible  in 
a  civil  action  against  the  party,  as  a  sol- 


emn judicial  confession  of  the  fact ;  and, 
according  to  some  authorities,  it  is  con- 
clusive. But  its  conclusiveness  has  since 
been  doubted  ;  for  the  plea  may  have  been 
made  to  avoid  expense.  See  Phil.  &  Am. 
on  Evid.  523,  n.  (4)  ;  2  Phil.  Evid.  25  ; 
Bradley  v.  Bradley,  2  Fairf.  367 ;  Reg. 
V.  Moreau,  12  Jur.  626;  11  Ad.  &  El. 
N.  s.  1028;  Clark  v.  Irvin,  <J  Ham.  131. 
But  the  plea  of  nolo  contendere  is  an  admis- 
sion for  that  trial  only,  and  is  not  ad- 
missible in  a  subsequent  action.  Com- 
monwealth V.  Horton,  9  Pick.  206  ;  Guild 
V.  Lee,  3  Law  Reporter,  p.  423 ;  supra, 
§§  179,  216.  In  Reg.  v.  Moreau,  which  was 
an  indictment  for  perjury  in  an  affidavit, 
in  which  the  defendant  had  sworn  that 
the  prosecutor  was  indebted  to  him  in 
.£40,  and  the  civil  suit  being  submitted 
to  arbitration,  the  arbitrator  awarded 
that  nothing  was  due,  the  award  was 
offered  in  evidence  against  the  prisoner, 
as  proof  of  the  falsity  of  his  affidavit ; 
but  the  court  held  it  as  merely  the  dec- 
haration  of  the  arbitrator's  opinion,  and 
therefore  not  admissible  in  a  criminal 
proceeding.  [The  record  of  the  convic- 
tion of  a  thief,  on  his  plea  of  "  guilty  " 
to  an  indictment  against  him  alone  for 
stealing  certain  property,  is  not  admissi- 
ble in  evidence  to  prove  the  theft,  on  the 
trial  of  a  receiver  of  that  property, 
upon  an  indictment  against  him  alone, 
which  indictment  does  not  aver  that  the 
thief  has  been  convicted.  Common- 
wealth V.  Elisha,  3  Gray,  460.] 
2  Supra,  §  627. 


CHAP,  v.]  KECOKDS   AND  JUDICIAL  WKITINGS.  683 

medium  of  proof  of  the  matters  of  fact  recited  in  it.  In  the  for- 
mer case,  the  record  can  never  be  considered  as  res  inter  alios 
acta;  the  judgment  being  a  public  transaction,  rendered  by  pub- 
lic authority,  and  being  presumed  to  be  faithfully  recorded.  It 
is  therefore  the  only  proper  legal  evidence  of  itself,  and  is  con- 
clusive evidence  of  the  fact  of  the  rendition  of  the  judgment,  and 
of  all  the  legal  consequences  resulting  from  that  fact,  whoever 
may  be  the  parties  to  the  suit  in  wliich  it  is  offered  in  evidence. 
Thus,  if  one  indicted  for  an  assault  and  battery  has  been  acquitted, 
and  sues  the  prosecutor  for  malicious  prosecution,  the  record  of 
acquittal  is  evidence  for  the  plamtiff,  to  establish  that  fact,  not- 
withstanding the  parties  are  not  the  same.  But  if  he  were  con- 
victed of  the  offence,  and  then  is  sued  in  trespass  for  the  assault, 
the  record  in  the  former  case  would  not  be  evidence  to  establish 
the  fact  of  the  assault ;  for,  as  to  the  matters  involved  in  the 
issue,  it  is  res  inter  alios  acta. 

§  539.  Same  subject.  The  distinction  between  the  admissibility 
of  a  judgment  as  a  fact,,  and  as  evidence  of  ulterior  facts  ^  may  be 
further  illustrated  by  the  instances  in  which  it  has  been  recog- 
nized. Thus,  a  judgment  against  the  sheriff  for  the  misconduct 
of  his  deputy  is  evidence  against  the  latter  of  the  fact,  that  the 
sheriff  has  been  compelled  to  pay  the  amount  awarded,  and  for 
the  cause  alleged  ;  but  it  is  not  evidence  of  the  fact  upon  which 
it  was  founded,  namely,  the  misconduct  of  the  deput}^,  unless  he 
was  notified  of  the  suit  and  required  to  defend  it.^  So  it  is  in 
other  cases,  where  the  officer  or  party  has  a  remedy  over.^  So, 
where  the  record  is  matter  of  inducement,  or  necessarily  introduc- 
tory to  other  evidence  ;  as,  in  an  action  against  the  sheriff  for 
neglect,  in  regard  to  an  execution  ;  ^  or  to  show  the  testimony  of 
a  witness  upon  a  former  trial ;  ^  or  where  the  judgment  consti- 
tutes one  of  the  muniments  of  the  party's  title  to  an  estate,  as 
where  a  deed  was  made  under  a  decree  in  chancery,^  or  a  sale 
was  made  by  a  sheriff,  upon  an  execution.^  So,  where  a  party 
has  concurrent  remedies  against  several,  and  has  obtained  satis- 
faction upon  a  judgment  against  one,  it  is  evidence  for  the  others.^ 

1  Tyler  v.  Ulmer,  12  Mass.  166,  per  <  Clarges  v.  Sherwin,  12  Mod.  343; 
Tarker,  C.  J.  Foster  v.  Sliaw,  7  S.  &  R.  156. 

2  Kip  V.   Brigbam,  6  Johns.    158 ;    7  »  Barr  v.  Gratz,  4  Wlieat.  213. 
Johns.   168 ;   Griffin   v.  Brown,   2   Pick.  6  Witmer  v.  Schhitter,  2  Rawle,  359 ; 
804;    Weld    v.   Nichols,    17   Pick.   538;  Jackson  v.  Wood,  8  Wend.  27,  34;  Fowler 
Head  v.  McDonald,  7  Monr.  203.  v.  Savage,  3  Conn.  90,  'JO. 

3  Adams  v.  Balch,  5  Greenl.  188.  1  Farwcll  v.  HilUard,  3  N.  H.  318. 


SS-l  LAW   OF  EVIDENCE.  [PAUT  IH. 

So,  if  one  be  sued  alone,  upon  a  joint  note  by  two,  it  has  been 
held,  that  the  judgment  against  him  may  be  shown  by  the  defend- 
ants, in  bar  of  a  second  suit  against  both,  for  the  same  cause,  to 
prove  that,  as  to  the  former  defendant,  the  note  is  extinct.^  So 
a  judgment  inter  alios  is  admissible,  to  show  the  charactei  in 
which  the  possessor  holds  his  lands.^ 

§  539  a.  Judgment  against  joint  and  several  contractors.  But 
where  the  contract  is  several  as  well  as  joint,  it  seems  that  the 
judgment  in  an  action  against  one  is  no  bar  to  a  subsequent  ac- 
tion against  all ;  nor  is  the  judgment  against  all,  jointly,  a  bar  to  a 
subsequent  action  against  one  alone.  For  when  a  party  enters  into 
a  joint  and  several  obligation,  he  in  effect  agrees  that  he  will  be 
liable  to  a  joint  action,  and  to  a  several  action  for  the  debt.  In 
either  case,  therefore,  the  bar  of  a  former  judgment  would  not 
seem  to  apply  ;  for,  in  a  legal  sense,  it  was  not  a  judgment  be- 
tween the  same  parties,  nor  upon  the  same  contract.  The  con- 
tract, it  is  said,  does  not  merely  give  the  obligee  an  election  of 
the  one  remedy  or  the  other,  but  entitles  him  at  once  to  both, 
though  he  can  have  but  one  satisfaction.^ 

§  540.  Foreign  judgments.  In  regard  to  foreign  judgments,  they 
are  usually  considered  in  two  general  aspects :  first,  as  to  judg- 
ments in  rem  ;  and,  secondly,  as  to  judgments  in  "personam.  The 
latter  are  again  considered  under  several  heads  :  first,  where  the 
judgment  is  set  up  by  way  of  defence  to  a  suit  in  a  foreign  tri- 
bunal ;  secondly,  where  it  is  sought  to  be  enforced  in  a  foreign 
tribunal  against  the  original  defendant,  or  his  property ;  and, 
thirdly,  where  the  judgment  is  either  between  subjects  or  be- 
tween foreigners,  or  between  foreigners  and  subjects.^  But,  in 
order  to  found  a  proper  ground  of  recognition  of  a  foreign  judg- 
ment, under  whichsoever  of  these  aspects  it  may  come  to  be  con- 
sidered, it  is  indispensable  to  establish,  that  the  court  which 
pronounced  it  had  a  lawful  jurisdiction  over  the  cause,  over  the 
thing,  and  over  the  parties.     If  the  jurisdiction  fails  as  to  either, 

1  Ward  V.  Johnson,  13  M.ass.  148.  See  265 ;  Lechmere  v.  Fletcher,  1  C.  &  M. 
also  Lechmere  v.  Fletclier,  1  C.  &  M.  623,  623,  634,  635,  per  Bayley,  B.  [Kirkpat- 
634,  635,  per  Bayley,  B.  rick  y.  Stingley,  2  Carter,  269]. 

2  Davis  V.  Loundes,  1  Bing.  N.  C.  607,  *  In  what  follows  on  the  suliject  of 
per  Tindiil,  C.  J.  See  further,  snpra,  foreign  judgments,  I  have  simply  tran- 
§  527  a;  Wells  v.  Compton,  3  Rob.  (La.)  scribed  and  abridged  what  has  recently 
171.  been  written  by  Mr.  Justice  Story,  in  his 

8  The  United  States  v.  Cushman,  2     learned  Commentaries  on  the  Conflict  of 
Sumn.  420,  437-441,  per  Story,  J.     See     Laws,  ch.  15  (2d  ed.). 
also  Sheeliy  v.  Mandeville,  0  Crauch,  253, 


CHAP.  V.^  KECORDS   AND   JUDICIAL   WRITINGS. 


585 


it  is  treated  as  a  mere  nullity,  having  no  obligation,  and  entitled 
to  no  respect  beyond  the  domestic  tribunals. ^ 

§  541.  Foreign  judgments  in  rem.  As  to  foreign  judgments  in 
rem^  if  the  matter  in  controversy  is  land,  or  other  immcvahle 
property^  the  judgments  pronounced  in  iXiQ  forum  rei  sitce  is  held 
to  be  of  universal  obligation,  as  to  all  the  matters  of  right  and 
title  which  it  professes  to  decide  in  relation  thereto.^  "  The 
same  principle,"  observes  Mr.  Justice  Story,^  "is  applied  to  all 
other  cases  of  proceeding  in  rem,  where  the  subject  is  movable 
property,  within  the  jurisdiction  of  the  court  pronouncing  the 
judgment.*  Whatever  the  court  settles  as  to  the  right  or  title, 
or  whatever  disposition  it  makes  of  the  property  by  sale,  revendi 
cation,  transfer,  or  other  act,  will  be  held  valid  in  every  other 
country,  where  the  same  question  comes  directly  or  indirectly  in 
judgment  before  any  other  foreign  tribunal.  This  is  very  famil- 
iarly known  in  the  cases  of  proceedings  in  rem  in  foreign  courts 
of  admiralty,  whether  they  are  causes  of  prize,  or  of  bottomry,  or 
of  salvage,  or  of  forfeiture,  or  of  any  of  the  like  nature,  over 
which  such  courts  have  a  rightful  jurisdiction,  founded  on  the 
actual  or  constructive  possession  of  the  subject-matter.^  The 
same  rule  is  applied  to  other  courts  proceeding  in  rem,  such  as 
the  Court  of  Exchequer  in  England,  and  to  other  courts  exercis- 


1  Story,  Confl.  Laws,  §§  584,  586; 
Hose  V.  Himely,  4  Cranch,  269,  270,  per 
Marshall,  C.  J. ;  Smith  v.  Knowlton,  11 
N.  H.  191 ;  Ilan<?ely  v.  Webster,  Id.  299 
[Thompson  r.  Whitman,  18  Wall.  (U.  S.) 
457.  There  seems  to  be  no  such  pre- 
sumption in  favor  of  the  jurisdiction  of 
foreign  courts,  or  of  inferior  domestic  tri- 
bunals, according  to  the  maxim  "  omnia 
prsesumuntur  rite  esse  acta,"  as  that 
which  exists  in  favor  of  the  superior 
courts,  in  a  state  or  country,  in  their 
own  tribunals.  Graham  v.  \Vhitely,  2 
Dutcher,  254  ;  Goulding  v.  Clark,  34  N. 
H.  148.  But  where  the  question  of  juris- 
diction is  established,  the  same  favorable 
presumption  should  be  applied  to  all 
judgments.  State  v.  Hinchman,  27  Penn. 
St.  479]. 

2  Story,  Confl.  Laws,  §§  532,  545,  551, 
591. 

8  Story,  Confl.  Laws,  §  592.  See  also 
Id.  §  597. 

*  See  Karnes  on  Equity,  b.  3,  ch.  8, 
§4. 

^  Croudson  v.  Leonard,  4  Cranch,  433 ; 
Williams  v.  Armroyd,  7  Cranch,  423 ; 
Rose  V.  Himely,  4  Cranch,  241 ;  Hudson 


V.  Guestier,  4  Cranch,  293  ;  The  Mary,  9 
Cranch,  126,  142-146  ;  1  Stark.  Evid.  pp. 
246,  247,  248;  Marshall  on  Insur.  b.  1, 
ch.  9,  §  6,  pp.  412,  435  ;  Grant  v.  McLach- 
lin,  4  Johns.  34 ;  Peters  v.  The  Warren 
Ins.  Co.,  3  Sumner,  389;  Bland  v.  Bam- 
field,  3  Swanst.  604,  605;  Bradstreet  v. 
Neptune  Insur.  Co.,  3  Sumner,  600 ;  Ma- 
goun  J'.  New  England  Insur.  Co.,  1  Story, 
157.  The  different  degrees  of  credit 
given  to  foreign  sentences  of  condemna- 
tion in  prize  causes,  by  the  American 
State  courts,  are  stated  in  4  Cowen,  520, 
n.  3.  1  Stark.  Evid.  2.32  (6th  ed.),  notes 
by  Metcalf.  See  also  2  Kent,  Comm. 
120,  121.  If  a  foreign  sentence  of  con- 
demnation as  prize  is  manifestly  erro- 
neous, as  if  it  professes  to  be  made  on 
particular  grounds,  which  are  set  forth, 
but  which  plainly  do  not  warrant  the  de- 
cree, Calvert  v.  Bovil,  7  T.  R.  523  ;  Pol- 
lard V.  Bell,  8  T.  R.  444  ;  or,  on  grounds 
contrary  to  the  laws  of  nations,  3  B.  & 
P.  215,  per  Ld.  Alvanley,  C.  J. ;  or,  if 
there  be  any  ambiguity  as  to  what  was 
the  ground  of  condemnation,  —  it  is  not 
conclusive,  Dalgleish  v.  Hodgson,  7  Bing. 
495,  504. 


586  LAW   OF   EVIDENCE.  [PAUT  m. 

ing  a  like  jurisdiction  in  rem  upon  seizures.^  And  in  cases.!  of 
this  sort  it  is  wholly  immaterial  whether  the  judgment  be  of 
acquittal  or  of  condemnation.  In  both  cases  it  is  equally  con- 
clusive.2  But  the  doctrine,  however,  is  always  to  be  understood 
with  this  limitation,  that  the  judgment  has  been  obtained  bona 
fide  and  without  fraud  ;  for  if  fraud  has  intervened,  it  will  doubt- 
less avoid  the  force  and  validity  of  the  sentence.^  So  it  must 
appear  that  there  have  been  regular  proceedings  to  found  the 
judgment  or  decree  ;  and  that  the  parties  in  interest  in  rem  have 
had  notice,  or  an  opportunity,  to  appear  and  defend  their  inter- 
ests, either  personally,  or  by  their  proper  representatives,  before 
it  was  pronounced  ;  for  the  common  justice  of  all  nations  requires 
that  no  condemnation  shall  be  pronounced,  before  the  party  has 
an  opportunity  to  be  heard."  * 

§  542.  Judgments  in  trustee  process.  Proceedings  also  by  cred- 
itors against  the  personal  property  of  their  debtor,  in  the  hands 
of  third  persons,  or  against  debts  due  to  him  by  such  third  per- 
sons (commonly  called  the  process  of  foreign  attachment,  or 
garnishment,  or  trustee  process^,  are  treated  as  in  some  sense  pro- 
ceedings in  rem,  and  are  deemed  entitled  to  the  same  considera- 
tion.^ But  in  this  last  class  of  cases  we  are  especially  to  bear  in 
mind,  that,  to  make  any  judgment  effectual,  the  court  must  pos- 
sess and  exercise  a  rightful  jurisdiction  over  the  res,  and  also 
over  the  person,  at  least  so  far  as  the  res  is  concerned ;  otherwise 
it  will  be  disregarded.  And  if  the  jurisdiction  over  the  res  be 
well  founded,  but  not  over  the  person,  except  as  to  the  res,  the 
judgment  will  not  be  either  conclusive  or  binding  upon  the  party 
in  personam,  although  it  may  be  in  rem^ 

§  543.  Judgments  in  rem,  how  far  conclusive.  In  all  these  caseS 
the  same  principle  prevails,  that  the  judgment,  acting  in  rem, 

1  Ibid. ;  1  Stark,  on  Evid.pp.  228-2.32,  *  Sawyer  v.  Maine  Fire  and  Mar.  Ins. 

240-248 ;    Gelston   v.  Hoyt,  3  Wheaton,  Co.,  12  Mass.  291 ;  Bradstreet  v.  Tiie  Nep- 

24() :   Williams   v.  Armroyd,  7   Cranch,  tune  Ins.  Co.,  3  Sumner,  600;  Magoun  y. 

42o  New  England  Insur.  Co.,  1  Story,  157. 
i  Ibid.  ^  See   cases  cited   in  4   Cowen,  520, 

3  Duchess  of  Kingston's  case,  11  State  521,  n. ;  Story,  Confl.  Laws,  §  549;  Holmes 

Trials,   pp.  261,  202  ;    8.  c.  20   Howell,  v.  Remsen,  20  Johns.  229  ;  Hull  i'.  Blake, 

State  Trials,  p.  355  ;  Id.  p.  538,  the  opin-  13  Mass.    153  ;   McDaniel  v.  Hughes,  3 

ion   of   the   judges;    Bradstreet   v.   The  East,  366 ;  Phillips  v.  Hunter,  2  H.  Black. 

Neptune  Insur.  Co.,  3  Sumner,  600;  Ma-  402,  410. 

goun  V.  New  England  Insur.  Co.,  1  Story,  ^  Story,  Confl.  Laws,  §  592  a.      See 

157.     If  the  foreign  court  is  constituted  also  Id.  §  549,  and  n. ;  Bissell  i*.  Briggs, 

by  persons  interested  in  the  matter   in  9  Mass.  498 ;  3  Burge,  Comm.  on  Col. 

dispute,   the  judgment   is   not  binding.  &  For.  Law,  pt.  2,  ch.  24,  p.  1014-1019. 
Price  I'.  Dewhurst,  8  Sim.  279;* 


CHAP,  v.]  RECORDS  AND  JUDICIAL  WRITINGS.  687 

shall  be  held  conclusive  upon  the  title  and  transfer  and  disposition 
of  the  property  itself,  in  whatever  place  the  same  property  may 
afterwards  be  found,  and  by  whomsoever  the  latter  may  be 
questioned ;  and  whether  it  be  directly  or  incidentally  brought 
in  question.  But  it  is  not  so  universally  settled,  that  the  judg- 
ment is  conclusive  of  all  points  which  are  ineideiitally  disposed  of 
by  the  judgment,  or  of  the  facts  or  allegations  upon  Avhich  it  pri>- 
fesses  to  be  founded.  In  this  respect,  different  rules  are  adopted 
by  different  States,  both  in  Europe  and  in  America.  In  Eng- 
land, such  judgments  are  held  conclusive,  not  only  in  rem,  but 
also  as  to  all  the  points  and  facts  which  they  professedly  or 
incidentally  decide.^  In  some  of  the  American  States  the  same 
doctrine  prevails.  While  in  other  American  States,  the  judg- 
ments are  held  conclusive  only  in  rem,  and  may  be  controverted 
as  to  all  the  incidental  grounds  and  facts  on  which  they  profess 
to  be  founded. 2 

§  544.  Decrees  affecting  personal  status.  A  similar  doctrine  has 
been  contended  for,  and  in  many  cases  successfully,  in  favor  of 
sentences  which  touch  the  general  capacity  of  persons,  and  those 
which  concern  marriage  and  divorce.  Foreign  jurists  strongly 
contend  that  the  decree  of  a  foreign  court,  declaring  the  state 
(status)  of  a  person,  and  placing  him,  as  an  idiot,  or  a  minor,  or 
a  prodigal,  under  guardianship,  ought  to  be  deemed  of  universal 
authority  and  obligation.  So  it  doubtless  would  be  deemed,  in 
regard  to  all  acts  done  within  the  jurisdiction  of  the  sovereign- 
whose  tribunals  pronounced  the  sentence.  But  in  the  United 
States  the  rights  and  powers  oi  guardians  are  considered  as  strictly 
local ;  and  no  guardian  is  admitted  to  have  any  right  to  receive 
the  profits  or  to  assume  the  possession  of  the  real  estate,  or  to 
control  the  person  of  his  ward,  or  to  maintain  any  action  for  the 
personalty,  out  of  the  States,  under  whose  authority  he  was  ap- 
pointed, without  having  received  a  due   appointment  from  the 

1  In  Blad  !'.  Bamfleld,  decided  by  Lord  2  Story,  Confl.  Laws,  §  593.      See  4 
Nottingham,  and  reported  in  3  Swanst.  Cowen,   522,  n.,  and  cases   there   cited 
604,  a  perpetual  injunction  was  awarded  Vandenlieuvel  i".  U.  Insur.  Co.,  2  Cain 
to  restrain  certain  suits  of  trespass  and  Cases  in  Err.  217;  2  Jolins.  Cases,  451 
trover  for  seizing  the  goods  of  the  defend-  Id.  481 ;  Robinson  v.  Jones,  8  Mass.  536 
ant  (Bamfleld)   for  trading   in    Iceland,  Maley   v.    Shattuck,   3   Cranch,   488;    2 
contrary  to  certain  privileges  granted  to  Kent,  Comni.  Lect.  37,  pp.  120,  121,  4th 
tlie  plaintiff  and  others.     The  property  ed.,  and   cases   there  cited  ;    Tarlton   v. 
was  seized  and  condemned  in  the  Danish  Tarlton,  4  M.  &  Selw.  20 ;  Peters  v.  War- 
courts.     Lord  Nottingham  held  the  sen-  ren  Insur.  Co.,  3  Sunin.  389;  Gelston  w. 
tence  conclusive  against   the  suits,  and  Hoyt,  3  Wheat.  246. 
awarded  the  injunction  accordingly. 


588  LAW   OF   EVIDENCE.  [PAKl  HI. 

proper  authority  of  the  State,  within  which  the  property  is  situ- 
ated, or  the  act  is  to  be  done,  or  to  whose  tribunals  resort  is  to 
be  had.  The  same  rule  is  also  applied  to  the  case  of  executors 
and  administrators.^ 

§  545.  Marriage.  In  regard  to  marriages,  the  general  principle 
is,  that  between  persons  sui  juris,  marriage  is  to  be  decided  by 
the  law  of  the  place  where  it  is  celebrated.  If  valid  there,  it  is 
valid  everywhere.  It  has  a  legal  ubiquity  of  obligation.  If 
invalid  there,  it  is  invalid  everywhere.  The  most  prominent,  if 
not  the  only  known,  exceptions  to  this  rule,  are  marriages  involv- 
ing polygamy  and  incest ;  those  prohibited  by  the  public  law  of 
a  country  from  motives  of  policy  ;  and  those  celebrated  in  foreign 
countries  by  subjects  entitling  themselves,  under  special  circum- 
stances, to  the  benefit  of  the  laws  of  their  own  country. ^  As  to 
sentences  confirming  marriages,  some  English  jurists  seem  disposed 
to  concur  with  those  of  Scotland  and  America,  in  giving  to  them 
the  same  conclusiveness,  force,  and  effect.  If  it  were  not  so,  as 
Lord  Hardwicke  observed,  the  rights  of  mankind  would  be  very 
precarious.  But  others,  conceding  that  a  judgment  of  a  third 
country,  on  the  validity  of  a  marriage  not  within  its  territories, 
nor  had  between  subjects  of  that  country,  would  be  entitled  to 
credit  and  attention,  deny  that  it  would  be  universally  binding.^ 
In  the  United  States,  however,  as  well  as  in  Scotland,  it  is  firmly 
held,  tliat  a  sentence  of  divorce,  obtained  bona  fide  and  without 
fraud,  pronounced  between  parties  actually  domiciled  in  the 
country,  whether  natives  or  foreigners,  by  a  competent  tribunal, 
having  jurisdiction  over  the  case,  is  valid,  and  ought  to  be  every- 
where held  a  complete  dissolution  of  the  marriage,  in  whatever 
country  it  may  have  been  originally  celebrated.^ 

§  546.  Foreign  judgments  in  personam.  "  In  the  next  place,  as 
to  judgments  in  personam  which  are  sought  to  he  enforced  by  a 
suit  in  a  foreign  tribunal.     There  has  certainly  been  no  inconsid- 


1  Story,  Confl.  Laws,§§  490,  504,  594;  clair,  1  Hagg.  Consist.  297;  Scrimsliire 
Morrell  v.  Dickey,  1  Johns.  Cli.  153;  Kraft  v.  Scrimsliire,  2  Hagg.  Consist.  895,  410. 
V.  Wickey,  4  G.  &  J.  .332  ;  Dixon  v.  Ram-  *  Story,  Confl.  Laws,  §  597.  See  also 
say,  3  Cranch,  319.  See, as  to  foreign  ex-  the  lucid  judgment  delivered  by  Gib- 
ecutors  and  administrators.  Story,  Confl.  son,  C.  J.,  in  Dorsey  v.  Dorsey,  7  Watts, 
Laws,  §§  51;J-523  [.'!«/>m,§  525,  and  notesl.  350.      The  whole  subject  of  foreign  di- 

2  Story,  Confl.  Laws,  §§  80,  81,  11^.  vorces  has  received  a  masterly  discussion 
[See  post,  vol.  ii.  (7th  ed.)  §§  460-464,  tit.  by  Mr.  Justice  Story,  in  his  Commenta- 
Alarriage.l  ries  on  the  Conflict  of  Laws,  c.  7,  §  200- 

8  Roach  V.  Garvan,  1  Ves.  157  ;  Story,  230  h. 
Confl.  Laws,  §§  595,  596 ;  Sinclair  v.  Sin- 


CHAP,  v.]  EECOEDS   AND   JUDICIAL   WEITR^GS. 


689 


erable  fluctuation  of  opinion  in  the  English  courts  upon  this 
subject.  It  is  admitted  on  all  sides,  that,  in  such  cases,  the 
foreign  judgments  are  prima  facie  evidence  to  sustain  the  action, 
and  are  to  be  deemed  right  until  the  contrary  is  established ;  ^ 
and,  of  course,  they  may  be  avoided,  if  they  are  founded  in  fraud, 
or  are  pronounced  by  a  court  not  having  any  competent  jurisdic- 
tion over  the  cause.^  But  the  question  is,  whether  they  are  not 
deemed  conclusive  ;  or  whether  the  defendant  is  at  liberty  to  go 
at  large  into  the  original  merits,  to  show  that  the  judgment 
ought  to  have  been  different  upon  the  merits,  although  obtained 
bona  fide.  If  the  latter  course  be  the  correct  one,  then  a  still 
more  embarrassing  consideration  is,  to  what  extent,  and  in  what 
manner,  the  original  merits  can  be  properly  inquired  into."  ^ 
But  though  there  remains  no  inconsiderable  diversity  of  opinion 
among  the  learned  judges  of  the  different  tribunals,  yet  the 
present  inclination  of  the  English  courts  seems  to  be,  to  sustain 
the  conclusiveness  of  foreign  judgments.^ 


1  See  Walker  v.  Witter,  1  Doug.  1, 
and  cases  there  cited;  Arnold  v.  Redfern, 
3  Bing.  353 ;  Sinclair  v.  Fraser,  cited  1 
Doug.  4,  5,  n. ;  Houlditch  ?'.  Donegal,  2 
Clark  &  Finn.  479 ;  s.  c.  8  Bligh,  301 ; 
Don  V.  Lippman,  5  Clark  &  Finn.  1,  19, 
20 ;  Price  v.  Dewhurst,  8  Sim.  279 ;  Ali- 
von  V.  Furnival,  1  Cromp.  Mecs.  &  Rose. 
277:  Hall  y.  Odher,  11  East,  118;  Ripple 
V.  Ripple,  1  Rawle,  386. 

2  See  Bowles  v.  Orr,  1  Younge  &  Coll. 
464 ;  Story,  Confl.  Laws,  §§  544-550 ;  Fer- 
guson V.  Mahon,  3  Perrv  &  Dav.  143; 
s.  c.  11  Ad.  &  El.  179;  Price  v.  Dewhurst, 
8  Simons,  279,  302 ;  Don  v.  Lippman,  5 
Clark  &  Finn.  1,  19-21 ;  Bank  of  Aus- 
tralasia V.  Nias,  15  Jur.  967.  So,  if  the 
defendant  was  never  served  with  process. 
Ibid.  And  see  Henderson  v.  Henderson, 
6  Ad.  &  El.  N.  s.  288. 

3  Story,  Confl.  Laws,  §  603. 

*  Id.  §§  604-606.  See  Guinness  v. 
Carroll,  1  Barn.  &  Adolph.  459 ;  Becquet 
V.  McCarthy,  2  B.  &  A.  951.  In  Holditch 
V.  Donegal,  8  Bligh,  301,  337-310,  Lord 
Brougham  held  a  foreign  judgment  to 
be  only  prima  facie  evidence,  and  gave 
his  reasons  at  large  for  that  opinion.  On 
the  other  hand,  Sir  L.  Shadwell,  in  Mar- 
ti|i  V.  NichoUs,  3  Sim.  458,  held  the  con- 
trary opinion,  that  it  was  conclusive  ; 
and  also  gave  a  very  elaborate  judgment 
upon  the  point,  in  which  he  reviewed  the 
principal  authorities.  Of  course,  the 
learned  judge  meant  to  except,  and  did 
except  in  a  later  case  (Price  v.  Dewhurst, 


%  Sim.  279,  302),  judgments  which  were 
produced  by  fraud.  See  also  Don  v.  Lipp- 
man, 5  Clark  &  Finn.  1,  20,  21 ;  Story, 
Confl.  Laws,  §§  545-550,  605 ;  Alivon  v. 
Furnival,  1  Cromp.  Mees.  &  Rose.  277, 
^84.  "  It  is,  indeed,  very  difficult,"  ob- 
serves Mr.  Justice  Story,  "  to  perceive 
what  could  be  done,  if  a  different  doctrine 
were  maintainable  to  the  full  extent  of 
opening  all  the  evidence  and  merits  of  the 
cause  anew,  on  a  suit  upon  tlie  foreign 
judgment.  Some  of  the  witnesses  may 
be  since  dead;  some  of  the  vouchers  may 
be  lost  or  destroyed.  The  merits  of  the 
case,  as  formerly  before  the  court,  upon 
the  whole  evidence,  may  have  been  de- 
cidedly in  favor  of  the  judgment;  upon  a 
partial  possession  of  the  original  evidence, 
they  may  now  appear  otherwise.  Suppose 
a  case  purely  sounding  in  damages,  such 
as  an  action  for  an  assault,  for  slander,  for 
conversion  of  property,  for  a  malicious 
prosecution,  or  for  a  criminal  conversa- 
tion ;  is  the  defendant  to  be  at  liberty  to 
retry  the  whole  merits,  and  to  make  out, 
if  he  can,  a  new  case,  upon  new  evidence? 
Or,  is  the  court  to  review  the  former  de- 
cision, like  a  court  of  appeal  upon  the  old 
evidence  1  In  a  case  of  covenant,  or  of 
debt,  or  of  a  breach  of  contract,  are  all  the 
circumstances  to  be  re-examined  anew  1 
If  they  are,  by  what  laws  and  rules  of  evi- 
dence and  principles  of  justice  is  the  valid- 
ity of  tlie  original  judgment  to  be  tried? 
Is  the  court  to  open  the  judgment,  and 
to  proceed  ex  cequo  et  bono  ?     Or  is  it  to 


590 


LAW   OF   EVIDENCE. 


[part  m. 


§  547.    Same   subject.     "  The   general  doctrine  maintained  in 
the  American  courts,  in  relation  to  foreign  judgments  in  personam^ 


administer  strict  law,  and  stand  to  the 
doctrines  of  the  local  administration  of 
justice?  Is  it  to  act  upon  the  rules  of 
evidence  acknowledged  in  its  own  juris- 
prudence, or  upon  those  of  the  foreign 
jurisprudence  f  These  and  many  more 
questions  might  be  put,  to  show  the  intrin- 
sic difficulties  of  the  subject.  Indeed,  the 
rule,  that  the  judgment  is  to  be  prima 
facie  evidence  for  tlie  plaintiff,  would  be  a 
mere  delusion,  if  the  defendant  might  still 
question  it,  by  opening  all  or  any  of  the 
original  merits  on  liis  side;  for,  under 
such  circumstances,  it  would  be  equiva- 
lent to  granting  a  new  trial.  It  is  easy  to 
understand  that  the  defendant  may  be  at 
liberty  to  impeach  the  original  justice  of 
the  judgment,  by  showing  that  the  court 
had  no  jurisdiction;  or,  tiiat  he  never  had 
any  notice  of  the  suit ;  or,  that  it  was  pro- 
cured by  fraud;  or,  that  upon  its  face  it  is 
founded  in  mistake;  or,  that  it  is  irregular, 
and  bad  by  the  local  law.  Fori  rei  judicatce. 
To  such  an  extent,  the  doctrine  is  intelli- 
gible and  practicable.  Beyond  this,  the 
right  to  impugn  the  judgment  is  in  legal 
effect  tlie  right  to  retry  tlie  merits  of  the 
original  cause  at  large,  and  to  put  the 
defendant  upon  proving  those  merits." 
See  Story,  Confl.  Laws,  §  607  ;  Alivon  v. 
Furnival,  1  Cromp.  Mees.  &  Rose.  277. 
[The  following  observations  upon  this 
general  subject  are  by  Judge  Redfield:  — 

"  We  have  lately  had  occasion  care- 
fully to  review  the  law  iipon  this  sub- 
ject, and  we  beg  leave  here  to  repeat 
what  we  then  said.  Story,  Confl.  Laws 
(Redf.  ed.),  §§  618a-618/l'.  There  is  no 
title  connected  with  the  general  subject 
of  the  conflict  of  laws,  more  embarrass- 
ing tiian  tiiat  which  we  are  now  consid- 
ering. It  has  undergone  considerable 
discussion  since  tlie  lamented  decease  of 
our  autlior.  We  have  therefore  felt 
compelled  to  state,  as  far  as  we  could, 
the  present  state  of  the  English  law  in 
regard  to  it. 

"  Whenever  it  becomes  important  to 
determine  what  is  the  law  of  a  foreign 
country,  the  decisions  of  the  highest 
judicial  tribunals  of  tliat  country  are 
helil  conclusive  in  regard  to  it.  This  is 
partly  upon  the  ground,  that  the  ques- 
tion turns  upon  a  fact,  and  that  fact  is 
the  true  state  of  the  law  of  the  country, 
whicli  is  but  another  name  for  the  deci- 
sions of  the  highest  legal  tribunals  of 
the  country ;  so  that,  in  truth,  the  law 
and  the  decisions  of  these  tribunals  thus 
become  identical.     This  is  illustrated  in 


a  recent  case.  Scott  i".  Pilkington,  2  B, 
&  S.  11 ;  8  Jur.  n.  s.  557.  And  a  similar 
conclusion  was  arrived  at  in  a  later  case. 
Crispin  v.  Daglioni,  9  Jur.  n.  s.  653.  In 
the  case  of  Scott  v.  Pilkington,  it  was 
determined,  that,  where  tlie  defendant, 
domiciled  in  England,  and  having  his 
place  of  business  there,  gave  a  letter  of 
credit  to  parties  in  New  York,  authoriz- 
ing them  to  draw  bills  of  exchange  on 
his  house  in  Liverpool,  such  letter  being 
delivered  to  the  defendant  in  New  York, 
and  intended  to  be  exhibited  to  purchas- 
ers of  such  bills  as  authority  for  draw- 
ing the  same,  the  claim  of  a  drawer  of 
such  bills  upon  the  defendant  for  non- 
acceptance  of  the  same  was  a  contract 
subject  to  the  law  of  New  York,  as  to 
its  validity,  force,  and  construction,  and 
not  to  be  judged  of  by  the  law  of  Eng- 
land in  any  respect.  And  when  in  such 
case  an  action  had  been  brought  in  the 
courts  of  New  York,  and  the  defendant 
appearing  by  attorney,  it  had  been  ad- 
judged, that,  by  the  law  of  that  State, 
the  defendant  was  liable,  and  judgment 
had  been  rendered  thereon  against  him, 
such  judgment  was  conclusive  as  to  the 
matter,  although,  if  the  contract  had 
been  subject  to  the  English  law,  and 
the  New  York  court  had  mistaken  it, 
the  judgment  would  not  have  con- 
cluded an  P'.nglish  court.  The  case  of 
Crispin  v.  Daglioni  involved  the  right  of 
succession  to  personal  estate  in  Portu- 
gal by  one  domiciled  in  that  country, 
and  the  matter  having  been  definitely 
settled  by  tiie  decision  of  the  highest  judi- 
cial tribunal  of  that  country,  it  was  held 
conclusive  every vvliere. 

"  But  it  was  said  in  Scott  v.  Pilking- 
ton, that  where  the  foreign  court,  in  giv- 
ing judgment,  and  as  one  of  the  elements 
upon  which  the  same  was  based,  as- 
sumed or  decided  a  question  of  English 
law,  by  which  the  cause  of  action  was 
ruled,  and,  in  doing  so,  mistook  its  true 
import,  in  such  case  the  judgment  of  the 
foreign  courts  will  be  of  no  force  or  va- 
lidity in  an  English  court.  Scott  v.  Pil- 
kington, 2  B.  &  S.  11  ;  8  Jur.  k.  s.  557  ; 
Simpson  v.  Fogo,  9  Jur.  n.  s.  403.  In 
the  case  of  Simpson  v.  Fogo,  the  effect 
of  foreign  judgments  is  very  extensively 
discussed ;  and  the  following  proposi- 
tions declared,  which  may  be  regarded 
as  embracing  the  present  recognized 
principles  of  English  law  upon  the  ques- 
tion. 

"  A  judgment  of  a  foreign  coiu*t  is  con- 


CHAP,  v.]  EECOEDS   AND   JUDICIAL   WKITINGS. 


591 


certainly  is,  that  they  are  priyna  facie  evidence  ;  but  that  they 
are  impeachable.     But  how  far,  and  to  what  extent,  this  doctrine 


elusive,  inter  partes,  where  there  is  noth- 
ing on  the  face  of  the  jiulgmcnt  which 
an  Englisli  court  can  inquire  into.  But 
tlie  courts  of  Enghuid  may  disregard 
such  judgment,  iiiii-r  partes,  if  it  appears 
on  the  record  to  be  manifestly  contrary 
to  natural  justice;  or  to  be  based  on 
domestic  legishition  not  recognized  in 
England  or  other  foreign  countries ;  or 
aS  founded  upon  a  misapprehension  of 
what  is  the  law  of  England ;  or  if  such 
judgment  proceeds  upon  a  distinct  refu- 
sal to  recognize  the  laws  of  the  country 
under  which  the  title  to  the  subject-mat- 
ter of  the  litigation  arose.  And  a  some- 
wliat  similar  enunciation  of  the  excep- 
tions to  the  conclusiveness  of  foreign 
judgments  is  found  in  The  Bank  of  Aus- 
tralasia V.  Nias,  16  Q.  B.  717;  4  Eng.  L. 
&  Eq.  252. 

"There  are  some  cases  where  foreign 
decrees  have  been  held  to  operate  in  rem, 
and  thus  to  transfer  an  effectual  and 
absolute  title  to  property  sold  under  an 
order  or  execution  from  the  foreign 
courts ;  but  where,  in  other  cases,  very 
similarly  situated,  it  lias  been  held  that 
only  the  title  of  the  judgment  debtor 
passed  under  the  sale.  The  true  distinc- 
tion in  this  class  of  cases  seems  to  be, 
that,  where  the  court  assumes  to  allow 
adverse  claimants  to  interpose  objections 
to  tlie  sale,  and  to  determine  the  validity 
of  such  claims,  and  to  pass  a  perfect  title 
to  the  thing  sold,  it  must  be  taken  as  a 
proceeding  in  rem,  and  as  having  effectu- 
ally foreclosed  all  claim  of  title  from 
any  party  who  did  in  fact  submit  his 
claim  to  adjudication  before  the  court, 
or  who  had  his  domicile  at  the  time  within 
the  jurisdiction  of  the  court,  and  who 
might  therefore  have  been  heard  there, 
provided  proper  notice  appears.  Imrie  v. 
Castrique,  8  C.  B.  n.  s.  406  ;  7  Jur.  n.  s. 
1076;  Simpson  v.  Fogo,  sitpra;  Woodruff 
V.  Taylor,  20  Vt.  65. 

"  And  it  will  not  exonerate  the  defend- 
ant in  a  foreign  judgment,  that  he  be- 
came a  party  to  the  jjroceedings  merely 
to  prevent  his  property  being  seized,  and 
that  the  judgment  is  erroneous  in  fact 
and  in  law  on  the  merits ;  whether  the 
plea  alleges,  that  the  error  does  or  does 
not  appear  upon  the  face  of  the  judg- 
ment. Nor  can  the  defendant  plead,  that 
the  enforcement  of  the  judgment  in  Eng- 
land is  contrary  to  natural  justice,  on  the 
ground  tiiat  the  defendant  had  discovered 
fresh  evidence,  showing  that  the  judg- 
ment is  erroneotis  in  fact  or  in  law  upon 


the  merits,  or  that  evidence  was  improp- 
erly admitted.  De  Cosse  Brissac  v.  Kath- 
bone,  6  H.  &  Nor.  301. 

"But  a  plea  in  bar  of  a  suit,  that  the 
same  matter  has  been  adjudged  between 
the  parties  in  a  foreign  court,  must  show 
that  the  judgment  is  final  and  conclusive 
between  the  parties,  according  to  the  law 
of  the  place  where  such  judgment  is  pro- 
nounced. Frayes  v.  Worms,  10  C.  B.  n.  8. 
149.  And  the  judgment  of  the  foreign 
court  may  always  be  impeached  by  show- 
ing any  facts  whereby  it  is  made  to  ap- 
pear that  the  court  had  not  jurisdiction 
by  the  laws  of  the  country  where  ren- 
dered. But  no  facts  can  be  shown,  by 
way  of  defence  to  such  judgment,  which 
might  have  been  urged  in  the  foreign 
court.  Vanquelin  v.  Bouard,  9  L.  T. 
N.  8.  582. 

"  These  cases,  mostly  of  recent  occur- 
rence, have  carried  the  doctrine  of  the 
conclusive  force  of  foreign  judgments 
considerably  beyond  the  point  maintained 
by  the  earlier  cases,  and  even  so  late  as 
within  the  last  thirty  years,  when  it  was 
held,  by  the  courts  in  Westminster  Hall, 
that  such  judgments  were  merely  prima 
facie  evidence  of  debt,  and  did  not  oper- 
ate as  an  absolute  and  conclusive  merger 
of  the  cause  of  action.  Story,  Confl.  of 
Laws,  §  599 ;  Smith  v.  Nicolls,  5  Bing.  N.  C. 
208.  But  it  was  formally  held,  by  the 
common  consent  of  counsel,  in  the  House 
of  Lords,  as  early  as  1845,  that  a  judgment 
of  the  highest  judicial  tribunal  of  France, 
upon  the  same  subject-matter,  in  favor 
of  the  present  defendant,  amounted  to 
res  judicata,  and  was  therefore  an  effectual 
merger  of  the  cause  of  action,  "the  for- 
eign tribunal  having  jurisdiction  over 
the  matter,  and  both  the  parties  having 
been  regularly  brought  before  "  it.  Ri- 
cardo  v.  Garcias,  12  CI.  &  Fin.  368.  So 
that  now  it  may  be  regarded  as  fully 
established  in  England,  that  the  contract 
resulting  from  a  foreign  judgment  is 
equally  conclusive,  in  its  force  and  opera- 
tion, with  that  implied  by  any  domestic 
judgment. 

"But  there  is  still  a  very  essential  and 
important  distinction  between  the  t^^l 
Domestic  judgments  rest  upon  the  con- 
clusive force  of  the  record,  which  is 
absolutely  unimpeachable.  Foreign  judg- 
ments are  mere  matters  en  pais,  to  be 
proved  the  same  as  an  arbitration  and 
award,  or  an  accoimt  stated  ;  to  be  es- 
tablished, as  matter  of  fact,  before  the 
jury  ;  and  by  consequence  subject  to  any 


592 


LAW   OF   EVrDENCE. 


[PAET  III. 


is  to  be  carried,  does  not  seem  to  be  definitely  settled.  It  has 
been  declared  that  the  jurisdiction  of  the  court,  and  its  power 
over  the  parties  and  the  things  in  controversy,  may  be  inquired 
into  ;  and  that  the  judgment  may  be  impeached  for  fraud.  Be- 
yond this,  no  definite  lines  have  as  yet  been  drawn."  ^ 

§  548.  Judgments  of  other  States.  We  have  already  adverted  to 
the  provisions  of  the  constitution  and  statutes  of  the  Utiited  States, 
in  regard  to  the  admissibility  and  effect  of  the  judgments  of  one 
State  in  the  tribunals  of  another.^  By  these  provisions,  such 
judgments,  authenticated  as  the  statutes  provide,  are  put  upon  the 
same  footing  as  domestic  judgments.^  "  But  this,"  observes  Mr. 
Justice  Story,  "  does  not  prevent  an  inquiry  into  the  jurisdiction 
of  the  court,  in  which  the  original  judgment  was  rendered,  to 
pronounce  the  judgment,  nor  an  inquiry  into  the  right  of  the 
State  to  exercise  authority  over  the  parties,  or  the  subject-matter, 
nor  an  inquiry  whether  the  judgment  is  founded  in,  and  im- 
peachable for,  a  manifest  fraud.  The  constitution  did  not  mean 
to  confer  any  new  power  upon  the  States  ;  but  simply  to  regulate 
the  effect  of  their  acknowledged  jurisdiction  over  persons  and 
things  within  their  territory.  It  did  not  make  the  judgments  of 
other  States  domestic   judgments,  to  all  intents  and  purposes ; 


contradiction  or  impeachment  which 
might  be  urged  against  any  other  matter 
resting  upon  oral  proof.  Hence  any 
fraud  which  entered  into  the  concoction 
of  the  judgment  itself  is  proper  to  be 
adduced,  as  an  answer  to  tlie  same ;  but 
no  fraud  which  occurred,  and  was  known 
to  tiic  opposite  party,  before  the  rendi- 
tion of  such  foreign  judgment,  and  which 
might  therefore  have  been  brouglit  to  tiie 
notice  of  tlie  foreign  court,  can  be  urged 
in  defence  of  it. 

"  It  is  proper  to  add,  tliat  while  the 
Englisli  courts  thus  recognize  the  general 
force  and  validity  of  foreign  judgments, 
it  has  been  done  under  sucli  limitations 
and  qualitications,  tiiat  great  latitude  still 
remains  for  breaking  the  force  of,  and 
virtually  disregarding,  such  foreign  judg- 
ments as  proceed  upon  an  obvious  misap- 
prehension of  the  principles  governing 
the  ease ;  or  where  they  are  produced  by 
partiality,  or  favoritism,  or  corruption, 
or  where  upon  their  face  they  appear  to 
be  at  variance  with  the  instinctive  prin- 
ciples of  universal  justice.  2  Story,  Kq. 
Jur.  §§  ir)7')-15!-!4,  and  cases  cited  ;  Bos- 
ton India  Rubber  Factory  v.  Iloit,  ll  Vt. 
92.    But  these  are  the  rare  exceptions."] 


•  Story,  Confl.  Laws,  §  608.  See  also 
2  Kent,  Comm.  119-121,  and  the  valuable 
notes  of  Mr.  Mctcalf  to  his  edition  of 
Starkie  on  Evid.  vol.  i.  pp.  2.32,  283  (6th 
Am.  ed.) ;  Wood  v.  Watkinson,  17  Conn. 
500.  The  American  cases  seem  further 
to  agree,  that  when  a  foreign  judgment 
comes  incidentally  in  question,  as,  where  it 
is  the  foundation  of  a  right  or  title  derived 
under  it,  and  the  like,  it  is  conclusive. 
If  a  foreign  judgment  proceeds  upon  an 
error  in  law,  apparent  upon  the  face  of  it, 
it  may  be  impeached  everywhere;  as,  if  a 
French  court,  professing  to  decide  accord- 
ing to  the  law  of  England,  clearly  mis- 
takes it.  Novelli  v.  Rossi,  2  B.  &  Ad. 
757. 

■i  Supra,  §§  504-506.  And  see  Floure- 
noy  V.  Durke,  2  Brev.  206. 

8  Taylor  v.  Bryden,  8  Johns.  173. 
Whore  the  jurisdiction  of  an  inferior 
court  depends  on  a  fact,  which  such  court 
must  necessarily  and  directly  decide,  its 
decision  is  taken  as  conclusive  evidence 
of  tlie  fact.  Britain  v.  Kinnaird,  1  B.  & 
B.  432;  Betts  v.  Bagley,  12  Pick.  57.2, 
582,  per  Shaw,  C.  J. ;  Steele  v.  Smith,  7 
Law  Rep.  461.  ' 


CHAP,  v.]  EECORDS   AND   JUDICIAX,   WRITINGS. 


593 


but  only  gave  a  general  validity,  faith,  and  credit  to  them  as 
evidence.!  No  execution  can  issue  upon  such  judgments,  with- 
out a  new  suit  in  the  tribunals  of  other  States.  And  they  enjoy 
not  the  right  of  priority,  or  privilege,  or  lien,  which  they  have  in 
the  State  where  they  are  pronounced,  but  that  only  which  the 
lex  fori  gives  to  them  by  its  own  laws,  in  the  character  of  foreign 
judgments."  ^ 

§  549.  Foreign  judgments  at  common  law.  The  common  laio 
recognizes  no  dutinctioyi  whatever,  as  to  the  effect  of  foreign 
judgments,  whether  they  are  between  citizens,  or  between  for- 
eigners, or  between  citizens  and  foreigners  ;  deeming  them  of 
equal  obligation  in  all  cases,  whoever  are  the  parties.^ 

§  550.  Decrees  of  ecclesiastical  courts.  In  regard  to  the  decrees 
and  sentences  of  courts,  exercising  any  branches  of  the  ecclesias- 
tical jurisdiction,  the  same  general  principles  govern,  which  we 
have  already  stated.*  The  principal  branch  of  this  jurisdiction, 
in  existence  in  the  United  States,  is  that  which  relates  to  matters 
of  probate  and  administration.  And  as  to  these,  the  inquiry,  as  in 
other  cases,  is,  whether  the  matter  was  exclusively  within  the 
jurisdiction  of  the  court,  and  whether  a  decree  or  judgment  has 
been  passed  directly  upon  it.  If  the  affirmative  be  true,  the  de- 
cree is  conclusive.  Where  the  decree  is  of  the  nature  of  proceed- 
ings in  rem,  as  is  generally  the  case  in  matters  of  probate  and 
administration,  it  is  conclusive,  like  those  proceedings,  against  all 
the  world.  But  where  it  is  a  matter  of  exclusively  private  litiga- 
tion, such  as,  in  assignments  of  dower,  and  some  other  cases  of 

1  See  Story's  Comment,  on  the  Con-  the  payment  of  a  debt  by  instalments, 
stit.  U.  S.  ch.  20,  §§  1297-1307,  and  cases  where  all  tlie  instalments  are  not  due  at 
there  cited  ;  Hall  v.  Williams,  6  Pick.  237  ;  the  time  of  the  judgment,  and  where  the 
Bissell  V.  Briggs,  9  Mass.  462  ;  Shumway  enforcement  of  the  interlocutory  judg- 
V.  Stillman,  6  Wend.  447  :  Evans  v.  Tarle-  nient  for  the  penalty  is  attempted  in 
ton,  9  Serg.  &  R.  260  ;  Benton  v.  Burgot,  another  State,  in  order  to  compel  the 
10  Serg.  &  R.  240 ;  Hancock  v.  Barrett,  1  payment  of  the  instalments  falling  due 
Hall,  155 ;  s.  0.  2  Hall,  302 ;  Wilson  v.  after  the  rendition  of  the  interlocutory 
Niles,  2  Hall,  358;  Hoxie  v.  Wright,  2  judgment  (Dimick  v.  Brooks,  21  Vt. 
Vt.  268;  Bellows  u.  Ingraham,  2  Vt.  573;  569),  is  merely  interlocutory,  and  does 
Aldrich  y.  Kinney,  4  Conn.  380;  Bennett  not  create  any  absolute  indebtedness, 
V.  Morley,  1  Wilcox,  100.  See  further,  and  no  action  of  debt  can  be  mam- 
1  Kent,  Comm.  260,  261,  and  n.  (d).  As  tained  upon  it.  As  it  is  not  a  proper  or 
to  the  effect  of  a  discharge  under  a  for-  perfected  judgment,  it  cannot  ha_ve  the 
eign  insolvent  law,  see  the  learned  judg-  same  effect  in  any  other  State  as  in  that 
ment  of  Shaw,  C.  J.,  in  Betts  v.  Bagley,  where  rendered,  and  cannot  therefore  be 
12  Pick.  572.  enforced,  either  under  the  laws  of  Con- 

2  Story,  Confl.  Laws,  §  609 ;  McEI-  gress,  or  upon  general  principles,  as  at 
moyle  v.  Cohen,  13  Peters,  312,  328,  329 ;  common  law.] 

Story,    Confl.   Laws,   §   582  a,   n.     [The  3  story,  Confl.  Laws,  §  610. 

judgment  of  a  court  in  one  State  for  the  *  2  Smith's  Leading  Cases,  446-448. 

penalty  of  a  bond,  intended  to   secure 
VOL.  I.  38 


594 


LAW   OF  EVIDENCE. 


[PAET  m. 


jurisdiction  conferred  by  particular  statutes,  the  decree  stands 
upon  the  footing  of  a  judgment  at  common  law.^  Thus,  the  pro- 
bate of  a  will,  at  least  as  to  the  personalty,  is  conclusive  in  civil 
cases,  in  all  questions  upon  its  execution  and  validity .^  The 
grant  of  letters  of  administration  is,  in  general,  prima  facie  evi- 
dence of  the  intestate's  death  ;  for  only  upon  evidence  zi  that 
fact  ought  they  to  have  been  granted.^  And  if  the  grant  of  ad- 
ministration turned  upon  the  question  as  to  which  of  the  parties 
was  next  of  kin,  the  sentence  or  decree  upon  that  question  is 
conclusive  everywhere,  in  a  suit  between  the  same  parties  for 
distribution.*  But  the  grant  of  administration  upon  a  woman's 
estate  determines  nothing  as  to  the  fact  whether  she  were  afeme 
covert  or  not ;  for  that  is  a  collateral  fact,  to  be  collected  merely 
by  inference  from  the  decree  or  grant  of  administration,  and  was 
not  the  point  directly  tried.^  Where  a  court  of  probate  has 
power  to  grant  letters  of  guardianship  of  a  lunatic,  the  grant  is 
conclusive  of  his  insanity  at  that  time,  and  of  his  liability,  there- 
fore, to  be  put  under  guardianship,  against  all  persons  subse- 
quently dealing  directly  with  the  lunatic,  instead  of  dealing,  as 
they  ought  to  do,  with  the  guardian.^ 

§  551.    Decrees  in  chancery.     Decrees  in  chancery  stand  upon 


1  Supra,  §§  525,  528. 

2  Poplin  V.  Hawke,  8  N.  H.  124;  1 
Jarnian  on  Wills,  pp.  22-24,  and  notes  by 
Perkins ;  Langdon  v.  Goddard,  3  Story, 
1.  See  post,  vol.  ii.  {7th  ed.)  §§  315, 
[673],  693.  [A  decree  of  a  probate  court 
of  another  State,  admitting  to  probate  a 
will  within  its  jurisdiction,  is  conclusive 
evidence,  if  duly  authenticated,  of  tlie 
validit}-  of  the  will,  upon  an  application 
to  prove  it  in  Massachusetts  ;  even  when 
no  notice  of  the  offer  of  the  will  for  pro- 
bate was  given,  if  by  tlie  law  of  that 
State  no  notice  was  required.  Creppen 
V.  Dexter,  13  Gray,  3:'.0.1 

3  Thompson  v.  Donaldson,  3  Esp.  63  ; 
French  v.  French,  1  Dick.  268 ;  Succes- 
sion of  Ilamblin,  3  Rob.  (La.)  130;  Jcf- 
fcrs  V.  RadclifE,  10  N.  H.  242.  But  if  the 
fact,  that  the  intestate  is  living,  when 
pleadable  in  abatement,  is  not  so  pleaded, 
tlie  grant  of  administration  is  conclusive. 
Newman  v.  Jenkins,  10  Pick.  516.  In 
Moons  I'.  De  Bernaies,  1  lluss.  301,  the 
general  practice  was  stated  and  not 
denied  to  be,  to  admit  the  letters  of  ad- 
ministration, as  sufficient  proof  of  the 
death,  until  impeaclied ;  but  the  Master 
of  the  Kolls,  in  that  case,  which  was  a 
foreign  grant  of  administration,  refused 


to  receive  them  ;  but  allowed  the  party 
to  examine  witnesses  to  the  fact.  [In  a 
suit  between  strangers,  where  the  admin- 
istrator is  not  a  party  in  his  representa- 
tive capacity,  letters  of  administration 
are  not  even  prima  facie  evidence  of 
death  ;  as  where  the  widow  of  a  deceased 
intestate  sues  on  a  policy  of  insurance 
made  for  her  benefit.  Mut.  Benefit  Life 
Ins.  Co.  V.  Tisdale,  Sup.  Ct.  U.  S.,  Oct.  T. 
1875,  5  Ins.  L.  J.  127.  In  this  case,  the 
doctrine  of  the  text,  after  a  careful  exam- 
ination of  the  authorities  on  which  it  is 
based,  and  others  cited,  is  denied,  and 
the  case  of  Tisdale  v.  Conn.  L.  Ins.  Co., 
26  Iowa,  177,  and  28  Iowa,  12,  contra,  is 
declared  not  to  be  law.  See  also  Clay- 
ton V.  Graham,  10  Ves.  288;  Leach  v. 
Leach,  8  Jur.  211.] 

*  Barrs  v.  Jackson,  1  Phil.  Ch.  582 ;  2 
Y.  &  C.  685;  Thomas  v.  Ketteriche,  1 
Ves.  333. 

5  Blackham's  case,  1  Salk.  200,  per 
Holt,  C.  J.  See  also  Hibsham  i;.  Dulle- 
ban,  4  Watts,  183. 

6  Leonard  v.  Leonard,  14  Pick.  280. 
But  it  is  not  conclusive  against  his  sub- 
sequent capacity  to  make  a  will.  Stone 
V.  Damon,  12  Mass.  488. 


CHAP,  v.]  KECOKDS   AND  JUDICIAL  WRITINGS.  595 

the  same  principles  with  judgments  at  common  law,  which  have 
already  been  stated.  Whether  the  statements  in  the  hill  are  to 
be  taken  conclusively  against  the  complainant  as  admissions  by 
him,  has  been  doubted;  but  the  prevailing  opinion  is  supposed 
to  be  against  their  conclusiveness,  on  the  ground  that  the  facts 
therein  stated  are  frequently  the  mere  suggestions  of  counsel, 
made  for  the  purpose  of  obtaining  an  answer, -under  oath.^  If 
the  bill  has  been  sworn  to,  without  doubt  the  party  would  be 
held  bound  by  its  statements,  so  far  as  they  are  direct  allegations 
of  fact.  The  admissibility  and  effect  of  the  ansiver  of  the  defend- 
ant is  governed  by  the  same  rules.^  But  a  demurrer  in  chancery 
does  not  admit  the  facts  charged  in  the  bill ;  for  if  it  be  over- 
ruled, the  defendant  may  still  answer.  So  it  is,  as  to  pleas  in 
chancery  ;  these,  as  well  as  demurrers,  being  merely  hypothetical 
statements,  that,  supposing  the  facts  to  be  as  alleged,  the  defend- 
ant is  not  bound  to  answer.^  But  pleadings,  and  depositions,  and 
a  decree,  in  a  former  suit,  the  same  title  being  in  issue,  are  ad- 
missible as  showing  the  acts  of  parties,  who  had  the  same  interest 
in  it  as  the  present  party,  against  whom  they  are  offered.* 

§  552.  Depositions.  In  regard  to  depositions,  it  is  to  be  ob- 
served, that,  though  informally  taken,  yet  as  mere  declarations 
of  the  witness,  under  his  hand,  they  are  admissible  against  him, 
wherever  he  is  a  party,  like  any  other  admissions  ;  or,  to  contra- 
dict and  impeach  him,  when  he  is  afterwards  examined  as  a 
witness.  But,  as  secondary  evidence,  or  as  a  substitute  for  his 
testimony  viva  voce,  it  is  essential  that  they  be  regularly  taken, 
under  legal  proceedings  duly  pending,  or  in  a  case  and  manner 
provided  by  law.^     And  though  taken  in  a  foreign  State,  yet  if 

1  Doe  V.  Sybourn,  7  T.  R.  3.   The  bill  247  ;  Clarke  v.  Robinson,  5  B.  Monr.  55  ; 
is  not  evidence  against  the  party  in  whose  Adams  v.  McMillan,  7  Port.  73. 
name  it  is  filed,  until  it  is  shown  that  he  ^  Supra,  §§  171,  179,  186,  202. 
was   privy  to  it.     When  this   privity  is  ^  Tompkins  ;;.  Ashhy,  1  M.  &  Malk. 
established,  the  bill  is  evidence  that  such  32,  33,  per  Abbott,  Ld.  C.  J. 
a  suit  was  instituted,  and  of  its  subject-  *  Viscount  Lorton  v.  Earl  of  Kings- 
matter  ;  but  not  of  the  plaintiff's  admis-  ton,  5  Clark  &  Fin.  269. 
sion  of  the  truth  of  the  matters  therein  ^  As  to  the  manner  of  taking  deposi- 
stated,  unless  it  were   sworn   to.      The  tions,  and   in  what  cases  they  may  be 
proceedings  after  answer  are  admissible  taken,  see  supra,   §§  320-325.     [The  an- 
in  evidence  of  the  privity  of  the  party  in  swet.s  of  a  party  to  a  suit,  to  interrogato- 
wliose  name  the  bill  was  filed.    Boileau  r.  ries  filed  in  a  case,  are  competent  evi- 
Rudlin,  12  Jur.  899  ;  2  Exch.  665.     And  dence  against  him,  as  admissions  on  his 
see   Bunden   v.    Cleveland,   4  Ala.  225;  part,  of  the  facts  stated  therein  in  another 
Bull.  N.  P.  235.     See  further,  as  to  the  suit,  although  the  issues  in  the  two  suits 
admission   of  bills  and  answers,  and  to  be  different.  Williams  v.  Cheney,  3  Gray, 
what  extent,   Randall   v.   Parramore,    1  215,  220.] 
Cranch,  409 ;  Roberts  v.  Tennell,  3  Monr. 


596 


LAW   OF  EVIDENCE. 


[PAET  in. 


taken  to  be  used  in  a  suit  pending  here,  the  forms  of  our  law,  and 
not  of  the  foreign  law,  must  be  pursued.^  But  if  the  deposition 
was  taken  in  perjjetuam,  the  forms  of  the  law  under  which  it  was 
taken  must  have  been  strictly  pursued,  or  it  cannot  be  read  in 
evidence.^  If  a  bill  in  equity  be  dismissed  merely  as  being  in  its 
substance  unfit  for  a  decree,  the  depositions,  when  offered  as  sec- 
ondary evidence  in  another  suit,  will  not  on  that  account  be 
rejected.  But  if  it  is  dismissed  for  irregularity,  as,  if  it  come  be- 
fore the  court  by  a  bill  of  revivor,  when  it  should  have  been  by 
an  original  bill,  so  that  in  truth  there  was  never  regularly  any 
such  cause  in  the  court,  and  consequently  no  proofs,  the  deposi- 
tions cannot  be  read  ;  for  the  proofs  cannot  be  exemplified  with- 
out bill  and  answer,  and  they  cannot  be  read  at  law,  unless  the 
bill  on  which  they  were  taken  can  be  read.^ 

§  553.  Depositions.  Cross-examination.  We  have  seen,  that  in 
regard  to  the  admissibility  of  a  former  judgment  in  evidence  it  is 
generally  necessary  that  there  be  a  perfect  mutuality  between  the 
parties ;  neither  being  concluded,  unless  both  are  alike  bound.* 
But  with  respect  to  depositions^  though  this  rule  is  admitted  in 
its  general  principle,  yet  it  is  applied  with  more  latitude  of  dis- 
cretion ;  and  complete  mutuality,  or  identity  of  all  the  parties,  is 
not  required.  It  is  generally  deemed  sufficient,  if  the  matters 
in  issue  were  the  same  in  both  cases,  and  the  party,  against  whom 


1  Evans  v.  Eaton,  7  AYheat.  420  ;  Far- 
ley V.  King,  S.  J.  Court,  Maine,  in  Lin- 
coln, Oct.  Term,  1822,  per  Preble,  J. 
But  depositions  taken  in  a  foreign  coun- 
try, under  its  own  laws,  are  admissible 
here  in  proof  of  probable  cause,  for  the 
arrest  and  extradition  of  a  fugitive  from 
justice,  upon  the  preliminary  examina- 
tion of  his  case  before  a  judge.  See 
Metzgcr's  case,  before  Betts,  J.,  5  N.  Y. 
Legal  Obs.  83. 

2  Gould  V.  Gould,  3  Story,  516. 

8  Backhouse  v.  Middlcton,  1  Ch.  Gas. 
173,  175;  Hall  v.  Iloddcsdon,  2  P.  Wms. 
162;  Vaughan  v.  Fitzgerald,  1  Sch.  & 
Lefr.  31G. 

*  Supra,  §  524.  The  reason  given  by 
Chief  Baron  Gilbert,  for  applying  the 
rule,  to  the  same  extent,  to  depositions 
taken  in  chancery,  is,  that  otherwise  great 
mischief  would  ensue  ;  "for  then  a  man, 
that  never  was  party  to  the  chancery 
proceedings,  might  use  against  his  ad- 
versary all  the  depositions  that  made 
against  him  ;  and  he  in  his  own  advan- 
tage could  not  use  the  depositions  that 
made  for  liim,  because  the  other  party, 


not  being  concerned  in  the  suit,  had  not 
the  liberty  to  cross-examine,  and  there- 
fore cannot  be  encountered  with  any 
depositions,  out  of  the  cause."  1  Gilb. 
p]vid.  62  ;  Rushworth  v.  Countess  of  Pem- 
broke, Hardr.  472.  But  the  exception 
allowed  in  the  text  is  clearly  not  within 
this  mischief,  the  right  of  cross-examina- 
tion being  unlimited,  as  to  the  matters 
in  question.  [In  the  King's  Bench,  it 
was  held  by  two  of  the  judges,  one  dis- 
senting, that  where  a  party  makes  use 
of  the  dei)ositions  of  witnesses  in  a  suit 
with  another  party,  in  regard  to  the 
same  subject-matter,  that  he  by  thus 
making  use  of  the  deposition  as  true, 
knowing  its  contents,  so  far  affirms  its 
truth,  that  it  may  be  used  as  original 
evidence  against  him.  Cockburn,  C.  J., 
said,  "A  man  who  brings  forward  an- 
other, for  the  purpose  of  asserting  or 
proving  some  fact  on  his  behalf,  whether 
in  a  cpurt  of  justice  or  otherwise,  must 
be  taken  himself  to  assert  the  fact  which 
he  thus  seeks  to  establish."  Richards  v. 
Morgan,  10  Jur.  n.  8.  559.] 


CHAP,  v.]  RECORDS   AND  JUDICIAL  WRITINGS.  697 

the  deposition  is  offered,  had  full  power  to  cross-examine  the 
witness.  Thus,  where  a  bill  was  pending  in  chancery,  in  favor 
of  one  plaintiff  against  several  defendants,  upon  which  the  court 
ordered  an  issue  of  devisavit  vel  won,  in  which  the  defendants  in 
chancery  should  be  plaintiffs,  and  the  plaintiff  in  chancery  de- 
fendant ;  and  the  issue  was  found  for  the  plaintiffs ;  after  which 
the  plaintiff  in  chancery  brought  an  ejectment  on  his  own  demise, 
claiming  as  heir  at  law  of  the  same  testator,  against  one  of  those 
defendants  alone,  who  claimed  as  devisee  under  the  will  for- 
merly in  controversy  ;  it  was  held,  that  the  testimony  of  one  of  the 
subscribing  witnesses  to  the  will,  who  was  examined  at  the  for- 
mer trial,  but  had  since  died,  might  be  proved  by  the  defendant 
in  the  second  action,  notwithstanding  the  parties  were  not  all  the 
same  ;  for  the  same  matter  was  in  controversy,  in  both  cases,  and 
the  lessor  of  the  plaintiff  had  precisely  the  same  power  of  object- 
ing to  the  competency  of  the  witness,  the  same  right  of  calling 
witnesses  to  discredit  or  contradict  his  testimony,  and  the  same 
right  of  cross-examination,  in  the  one  case,  as  in  the  other.^  If 
the  power  of  cross-examination  was  more  limited  in  the  former 
suit,  in  regard  to  the  matters  in  controversy  in  the  latter,  it  would 
seem  that  the  testimony  ought  to  be  excluded.^  The  same  rule 
applies  to  privies,  as  well  as  to  parties. 

§  554.  In  equity.  But  though  the  general  rule,  at  law,  is,  that 
no  evidence  shall  be  admitted,  but  what  is  or  might  be  under  the 
examination  of  both  parties  ;  ^  yet  it  seems  clear,  that,  in  equity, 
a  deposition  is  not,  of  course,  inadmissible,  in  evidence,  because 
there  has  been  no  cross-examination,  and  no  waiver  of  the  right. 
For  if  the  witness,  after  his  examination  on  the  direct  interroga- 
tories, should  refuse  to  answer  the  cross-interrogatories,  the  party 
producing  the  witness  will  not  be  deprived  of  his  direct  testi- 
mony, for,  upon  application  of  the  other  party,  the  court  would 
have  compelled  him  to  answer.'*  So,  after  a  witness  was  exam- 
ined for  the  plaintiff,  but  before  he  could  be  cross-examined,  he 

1  Wright  V.  Tathara,  1  Ad.  &  El.  3 ;  management  of  one  of  them,  if  the  wit- 
12  Vin.  Abr.  tit.  Evidence,  A,  b,  31,  pi.  ness  is  shown  to  be  beyond  sea.  Sills  v. 
45,  47.  As  to  the  persons  who  are  to  be  Brown,  9  C.  &  P.  601,  603,  per  Coleridge, 
deemed  parties,  see  s«/>ra,  §§  523,  535.  J.;  Bull.  N.  P.  242;  Rex  v.  Eriswell,  3 

2  Hardr.  315;  Cazenove  v.  Vaughan,  T.  R.  707,  712,  721  ;  J.  Kely.  55. 

1  IkL  &  S.  4.     It  has   been  held  that  the  *  Cazenove  v.  Vaughan,  1  M.  &  S.  4, 

depositionof  a  witness  before  the  coroner,  6;  Attorney-General  v.  Davison,  1  McCl. 

upon  an  inquiry  touching  the  death  of  a  &  Y.   160;  Gass  v.  Stinson,  3  Sumn.  98, 

person  killed  by  a  collision  of  vessels,  was  104,  105. 
admissible  in  an  action  for  the  negligent  *  Courtney  v.  Hoskins,  2  Russ.  253. 


598  LAW   OF   EVIDENCE.  [PAET  III. 

died ;  the  court  ordered  his  deposition  to  stand  ;  ^  though  the 
want  of  the  cross-examination  ought  to  abate  the  force  of  his 
testimony .2  So,  where  the  direct  examination  of  an  infirm  wit- 
ness was  taken  by  the  consent  of  parties,  but  no  cross-interroga- 
tories were  ever  filed,  though  the  witness  lived  several  months 
afterwards,  and  there  was  no  proof  that  they  might  not  have  been 
answered,  if  they  had  been  filed ;  it  was  held,  that  the  omission 
to  file  them  was  at  the  peril  of  the  party,  and  that  the  deposition 
was  admissible.^  A  new  commission  may  be  granted,  to  cross- 
examine  the  plaintiff's  witnesses  abroad,  upon  subsequent  dis- 
covery of  matter  for  such  examination.*  But  where  the  deposition 
of  a  witness,  since  deceased,  was  taken,  and  the  direct  exami- 
nation was  duly  signed  by  the  magistrate,  but  the  cross-examina- 
tion, which  was  taken  on  a  subsequent  day,  was  not  signed,  the 
whole  was  held  inadmissible.^ 

§  555.  Depositions  relating  to  custom.  Depositions^  as  well  as 
verdicts^  which  relate  to  a  custom,  or  prescription,  or  pedigree, 
where  reputation  would  be  evidence,  are  admissible  against 
strangers  ;  for  as  the  declarations  of  persons  deceased  would  be  ad- 
missible in  such  cases,  a  fortiori  their  declarations  on  oath  are  so.^ 
But  in  all  cases  at  law,  where  a  deposition  is  offered  as  secondary 
evidence,  that  is,  as  a  substitute  for  the  testimony  of  the  witness 
viva  voce,  it  must  appear  that  the  witness  cannot  be  personally 
produced  ;  unless  the  case  is  provided  for  by  statute,  or  by  a  rule 
of  the  court.'^ 

§  556.  Inquisitions.  The  last  subject  of  inquiry  under  this 
head  is  that  of  inquisitions.  These  are  the  results  of  inquiries, 
made  under  competent  public  authority,  to  ascertain  matters  of 
public  interest  and  concern.  It  is  said  that  they  are  analogous 
to  proceedings  in  rem,  being  made  on  behalf  of  the  public  ;  and 
that  therefore  no  one  can  strictly  be  said  to  be  a  stranger  to  them. 
But  the  principle  of  their  admissibility  in  evidence,  between 
private  persons,  seems  to  be,  that  they  are  matters  of  public  and 
general  interest,  and  therefore  within  some  of  the  exceptions  to 
the  rule  in  regard  to  hearsay  evidence,  which  we  have  heretofore 

1  Arundel  v.  Arundel,  1  Chan.  R.  90.  *  King  of    Hanover  v.  Wlicatley,  4 

2  O'Callaghan  v.  Murpliy,   2   Sch.   &     Beav.  78. 

Lef.  158;  Gass  i-.  Stinson,  3   Sumn.  98,  &  Reg.  v.  France,  2  M.  &  Rob.  207. 

lOtJ,  107.    Bat  see  Kissam  v.  Forrest,  25  6  Bull.  N.  P.  239,  240  ;  supra,  §§  127- 

Wend.  651.  130,  189,  140. 

3  Gass  V.  Stinson,  3  Sumn.  98,  where  ^  Supra,  §§  322,  323. 
tills  subject  is  fully  examined  by  Story,  J. 


CHAP,  v.]  EECOEDS   AND  JUDICIAL  WRITINGS. 


699 


considered.^  "Whether,  therefore,  the  adjudication  be  founded 
on  oath  or  not,  the  principle  of  its  admissibility  is  the  same.  And, 
moreover,  it  is  distinguished  from  other  hearsay  evidence,  in 
having  peculiar  guaranties  for  its  accuracy  and  fidelity .^  The 
general  rule  in  regard  to  these  documents  is,  that  they  are  admis- 
sible in  evidence,  but  that  they  are  not  conclusive  except  against 
the  parties  immediately  concerned,  and  their  privies.  Thus,  an 
inquest  of  office,  by  the  attorney-general,  for  lands  escheating  to 
the  government  by  reason  of  alienage,  was  held  to  be  evidence  of 
title,  in  all  cases,  but  not  conclusive  agamst  any  person,  who  was 
not  tenant  at  the  time  of  the  inquest,  or  party  or  privy  thereto, 
and  that  such  persons,  therefore,  might  show  that  there  were 
lawful  heirs  in  esse^  who  were  not  aliens.^  So,  it  has  been  re- 
peatedly held  that  inquisitions  of  lunacy  may  be  read ;  but  that 
they  are  not  generally  conclusive  against  persons  not  actually 
parties.*  But  inquisitions,  extrajudicially  taken,  are  not  admis- 
sible in  evidence.^ 


1  Supra,  §§  127-140. 

2  Phil.  &  Am.  on  Evid.  578,  579 ;  1 
Stark.  Evid.  260,  261,  263. 

8  Stokes  V.  Dawes,  4  Mason,  268,  per 
Story,  J. 

*  Sergeson  v.  Sealey,  2  Atk.  412  ;  Den 
V.  Clark,  5  Halst.  217,  per  Ewing,  C.  J.  ; 
Hart  I'.  Deanier,  6  Wend.  497 ;  Eaulder 
V.  Silk,  3  Campb.  126;  2  Madd.  Chan. 
578. 


5  Glossop  V.  Pole,  3  M.  &  S.  175;  Lat- 
kow  V.  Earner,  2  H.  Bl.  437.  See  supra, 
§  550,  that  the  inquisition  is  conclusive 
against  persons,  who  undertake  subse- 
quently to  deal  with  the  lunatic,  instead 
of  dealing  with  the  guardian,  and  seek  to 
avoid  his  authority,  collaterally,  by  show- 
ing that  the  party  was  restored  to  hia 
reason. 


600  LAW   OF  EVIDENCE.  [PAET  HI. 


CHAPTER  VI. 

OF  PRIVATE  WRITINGS. 

§  557.  Private  writings.  The  last  class  of  written  evidence 
which  we  propose  to  consider  is  that  of  private  writings. 
And,  in  the  discussion  of  this  subject,  it  is  not  intended  sepa- 
rately to  mention  every  description  of  writings  comprised  in  this 
class,  but  to  state  the  principles  which  govern  the  proof,  admis- 
sibility, and  effect  of  them  all.  In  general,  all  private  writings 
produced  in  evidence  must  be  proved  to  be  genuine ;  but  in  what 
is  now  to  be  said,  particular  reference  is  had  to  solemn  obligations 
and  instruments,  under  the  hand  of  the  party,  purporting  to  be 
evidence  of  title ;  such  as  deeds,  bills,  and  notes.  These  must 
be  produced,'and  the  execution  of  them  generally  be  proved,  or 
their  absence  must  be  duly  accounted  for,  and  their  loss  supplied 
by  secondary  evidence. 

§  558.  Proof  of,  when  lost.  And  first,  in  regard  to  the  produc- 
tion of  such  documents.  If  the  instrument  is  lost,  the  party  is 
required  to  give  some  evidence  that  such  a  paper  once  existed, 
though  slight  evidence  is  sufficient  for  this  purpose,  and  that  a 
bo?ia  fide  and  diligent  search  has  been  unsuccessfully  made  for  it 
in  the  place  where  it  was  most  likely  to  be  found,  if  the  nature 
of  the  case  admits  such  proof ;  after  which,  his  own  affidavit  is 
admissible  to  the  fact  of  its  loss.^     The  same  rule  prevails  where 

1  Supra,  §  349,  and  cases  there  cited.  Grcenl.    368  ;     Stockdale   v.   Young,    3 

The  rule  is  not  restricted  to  facts  pecul-  Strobh.  501,  n.    In  other  cases,  it  has  been 

iariy  within  the  party's  knowledge  ;  but  held,  that,  in  the  order  of  proof,  the  loss 

permits  liim  to  state  other  pertinent  facts,  or  destruction  of  the  paper  must  first  be 

such  &s  his  search  for  the  document  else-  shown.     Willis  v.  McDole,  2  South.  501 ; 

where  than  among  his  own  papers.    Ved-  Sterling  v.  Potts,  Id.  773 ;  Shrouders  v. 

der  V.  Wilking,  5  Denio,  64.     In  regard  to  Harper,  1  Harringt.  444;  I'inn  v.  M'Gon- 

the  order  of  the  proof,  naaiely,  whether  igle,   9   Watts   &    Serg.    75;    Murray    v. 

the   existence   and   genuineness   of   the  Buchanan,  7  Blackf.  549;  Parke  ;-•.  Bird, 

paper,  and  of  course  its  general  character  3  Barr,  3()0.     But,  on  the  one  hand,  it  is 

or  contents,  must  be  proved  bp/ore  any  evi-  plain,  that  the  proof  of  the  loss  of  a  doc- 

dence  can  be  received  of  its  loss,  the  de-  ument  necessarily  involves  some  descrip- 

cisions  are  not  uniform.     The  earlier  and  tive  proof  of  the  document  itself,  though 

some  later  cases  require  that  this  order  not  to  the  degree  of  precision  subsoquent- 

should  be  strictly  observed.     Goodicr  v.  \y  necessary  in  order  to  establish  a  title 

Lake,  1  Atk.  446;  Sims  v.  Sims,  2  Kcp.  under  it;  and.  on  the  other  hand,  a  strong 

Const.   Ct.   225 ;   Kimball   v.  Morrell,  4  probability  of  its  loss  has  been  held  suffi- 


CHAP.  YI.] 


PEIVATE  WRirrNGS. 


601 


the  instrument  is  destroyed.  What  degree  of  diligence  in  the 
search  is  necessary  it  is  not  easy  to  define,  as  each  case  depends 
much  on  its  peculiar  circumstances ;  and  the  question,  whether 
the  loss  of  the  instrument  is  sufificiently  proved  to  admit  second- 
ary evidence  of  its  contents,  is  to  be  determined  by  the  court  and 
not  by  the  jury.^  But  it  seems  that,  in  general,  the  party  is  ex- 
pected to  show  that  he  has  in  good  faith  exhausted,  in  a  reasona- 
ble degree,  all  the  sources  of  information  and  means  of  discovery 
■which  the  nature  of  the  case  would  naturally  suggest,  and  which 
were  accessible  to  him.*-^  It  should  be  recollected,  that  the  object 
of  the  proof  is  merely  to  establish  a  reasonable  presumption  of 
the  loss  of  the  instrument,  and  that  this  is  a  preliminary  inquiry 
addressed  to  the  discretion  of  the  judge.  If  the  paper  was  sup- 
posed to  be  of  little  value,  or  is  ancient,  a  less  degree  of  diligence 
will  be  demanded,  as  it  will  be  aided  by  the  presumption  of  loss 
which  these  circumstances  afford.  If  it  belonged  to  the  custody 
of  certain  persons,  or  is  proved  or  may  be  presumed  to  have  been 
in  their  possession,  they  must,  in  general,  be  called  and  sworn  to 
account  for  it,  if  they  are  within  reach  of  the  process  of  the  court.' 


cient  to  let  in  the  secondary  evidence  of 
its  contents.  Bouldin  v.  Massie,  7  Wheat. 
122,  154,  155.  These  considerations  will 
go  far  to  reconcile  most  of  tlie  cases  ap- 
parently conflicting.  In  Fitch  v.  Bogue, 
19  Conn.  285,  the  order  of  the  proof  was 
held  to  be  immaterial,  and  to  rest  in  the 
discretion  of  the  court.  It  is  sufficient, 
if  the  party  has  done  all  that  could  rea- 
sonably be  e.'cpected  of  him,  under  the 
circumstances  of  the  case,  in  searching 
for  the  instrument.  Kelsey  i;.  Hanraer, 
18  Conn.  311.  After  the  loss  of  a  deed 
has  been  establislied,  the  secondary  evi- 
dence of  the  contents  or  substance  of 
the  contents  of  iis  operative  parts  must  be 
clear  and  direct,  and  its  execution  must 
be  distinctly  proved.  And  the  declara- 
tions of  the  grantor  are  admissible,  in  cor- 
roboration of  the  other  evidence.  Met- 
calf  V.  Van  Benthuysen,  3  Comet.  424 ; 
Mariner  v.  Saunders,  5  Gilm.  113. 

1  Page  V.  Page,  16  Pick.  368  [Glas- 
sell  V.  Mason,  32  Ala.  719;  Wood- 
worth  !;.  Barker,  1  Hill  (N.  Y.),  176; 
Batchelder  v.  Nutting,  16  N.  H.  261; 
ante,  §  49,  n.  WhQe  it  is  a  general  rule 
that  the  affidavit  of  the  plaintiff  must 
be  produced  where  a  paper  is  alleged 
to  be  lost,  of  which  he  must  be  pre- 
sumed to  have  the  custody,  before  sec- 
ondary evidence  of  its  contents  can  be 
admitted,  yet  the  rule  is  not  inflexible. 
Where  the  nominal  party  to  the  record 


is  not  the  party  actually  seeking  to  re- 
cover, and  the  party  interested  has  used 
due  diligence  to  find  the  plaintiff  and  pro- 
duces proof  that  he  has  absconded  to 
parts  unknown,  he  has  done  all  that  can 
be  reasonably  required  of  him,  and  the 
production  of  the  affidavit  of  the  absent 
party  to  the  record  may  be  dispensed 
with.  Foster  v.  Mackay,  7  Met.  531, 
537]. 

2  Rex  V.  Morton,  4  M.  &  S.  48 ;  Rex 
V.  Castleton,  6  T.  R.  236;  1  Stark.  Evid. 
336-340  :  Willis  v.  McUole,  2  South.  501 ; 
Thompson  i-.  Travis,  8  Scott,  85 ;  Parks 
V.  Dunklee,  3  Watts  &  Serg.  291 ;  Gath- 
ercole  v.  Miall,  15  Law  Journ.  179 ;  Doe  v. 
Lewis,  15  Jur.  512 ;  5  Eng.  L.  &  Eq. 
400.  The  admission  of  the  nominal 
plaintiff,  that  he  had  burnt  the  bond,  he 
being  interested  adversely  to  the  real 
plaintiff",  has  been  held  sufficient  to  let 
in  secondary  evidence  of  its  contents. 
Shortz  V.  Unangst,  3  Watts  &  Serg.  45. 
[Where  a  party  has  been  deprived  of  an 
instrument  by  fraud,  secondary  evidence 
of  its  contents  is  admissible.  Grimes  v. 
Kimball,  3  Allen,  518.  And  even  where 
a  party  who  offers  to  prove  the  contents 
of  a  paper  has  himself  destroyed  it,  he 
may  explain  the  circumstances  of  the  de- 
struction, in  order  to  prove  the  contents. 
Tobin  V.  Shaw,  45  Maine,  331] 

3  Ralph  V.  Brown,  3  Watts  &  Serg. 
395. 


602 


LAW   OP  EVIDENCE. 


[part  in. 


And  so,  if  it  might  or  ought  to  have  been  deposited  in  a  public 
office,  or  other  particular  place,  that  place  must  be  searched.  If 
the  search  was  made  by  a  third  person,  he  must  be  called  to  tes- 
tify respecting  it.  And  if  the  paper  belongs  to  his  custody,  he 
must  be  served  with  a  subpoena  duces  tecum  to  produce  it.^  If  it 
be  an  instrument  which  is  the  foundation  of  the  action,  and  which, 
if  found,  the  defendant  may  be  compelled  again  to  pay  to  a  bona 
fide  holder,  the  plaintiff  must  give  sufficient  proof  of  its  destruc- 
tion to  satisfy  the  court  and  jury  that  the  defendant  cannot  be 
liable  to  pay  it  a  second  time.^  And  if  the  instrument  was  exe- 
cuted in  duplicate,  or  triplicate,  or  more  parts,  the  loss  of  all  the 
parts  must  be  proved  in  order  to  let  in  secondary  evidence  of 
the  contents.^  Satisfactory  proof  being  thus  made  of  the  loss 
of  the  instrument,  the  party  will  be  admitted  to  give  secondary 
evidence  of  its  contents.* 


1  The  duty  of  the  witness  to  produce 
such  a  document  is  thus  laid  down  by 
Shaw,  C.  J.  :  "  There  seems  to  be  no  dif- 
ference in  principle  between  compelling  a 
witness  to  produce  a  document  in  liis  pos- 
session, under  a  subpcena  duces  tecum,  in  a 
case  where  the  party  calling  the  witness 
has  a  right  to  the  use  of  such  document, 
and  compelling  him  to  give  testimony, 
when  the  facts  lie  in  liis  own  knowl- 
edge. It  has  been  decided,  though  it  was 
formerly  doubted,  that  a  subpcena  duces 
tecum  is  a  writ  of  compulsory  obligation, 
which  tlie  court  has  power  to  issue,  and 
whicli  the  witness  is  bound  to  obey, 
and  which  will  be  enforced  by  proper 
process  to  compel  the  production  of  the 
paper,  when  the  witness  has  no  lawful  or 
reasonable  excuse  for  withholding  it. 
Amey  v.  Long,  9  East,  478  ;  Corsen  v. 
Dubois,  1  Holt,  N.  P.  239.  But  of 
such  lawful  or  reasonable  excuse  the 
court  at  Nisi'  Prius,  and  not  the  witness, 
is  to  judge.  And  wlien  the  witness  has  the 
paper  ready  to  produce,  in  obedience  to 
the  summons,  but  claims  to  retain  it  on 
the  ground  of  legal  or  equitable  interests 
of  his  own,  it  is  a  question  to  the  dis- 
cretion of  tlie  court,  under  the  circum- 
stances of  the  case,  whether  the  witness 
ought  to  produce,  or  is  entitled  to  with- 
hold, the  paper."  Bull  v.  Loveland,  10 
Pick.  14. 

■i  Hansard  v.  Robinson,  7  B.  &  C.  90  ; 
Lubbock  V.  Tribe,  3  M.  &  W.  607.  See 
also  Peabody  v.  Denton,  2  Gall.  351 ;  An- 
derson I'.  Kobson,  2  Day,  495 ;  Davis  v. 
Todd,  4  Taunt.  602  ;  Pierson  v.  Hutchin- 
son, 2  Campb.  211;  Rowley  v.  Ball,  3 
Cowen,  o03;  Kirby  v.  Sissou,  2  Wend. 


550 ;  Murray  v.  Carrett,  3  €al!,  373  ; 
Mayor  v.  Johnson,  3  Carapb.  324  ;  Swift 
V.  Stevens,  8  Conn.  431  ;  Ramuz  v. 
Crowe,  11  Jur.  715;  post,  vol.  ii.  §  156. 

3  Bull.  N.  P.  254  ;  Rex  v.  Castleton,  6 
T.  R.  236;  Doe  v.  Pulman,  3  Ad.  &  El. 
N.  s.  622. 

*  See,  as  to  secondary  evidence,  supra, 
§  84,  and  note.  Where  secondary  evi- 
dence is  resorted  to,  for  proof  of  an  instru- 
ment which  is  lost  or  destroyed,  it  must, 
in  general,  be  proved  to  have  been  exe- 
cuted. Jackson  c.  Frier,  16  Johns.  19B; 
Kimball  y.  Morrell,  4Greenl.368  ;  Kelsey 
V.  Hanmer,  11  Conn.  311;  Porter  v. 
Ferguson,  4  Fla.  102.  But  if  the  sec- 
ondary evidence  is  a  copy  of  the  instru- 
ment which  appears  to  have  been  attested 
by  a  witness,  it  is  not  necessary  to  call 
this  witness.  Poole  v.  Warren,  3  Nev.  & 
P.  693.  [See  also  ante,  §  509.]  In  case  of 
the  loss  or  destruction  of  the  instrument, 
the  admissions  of  the  party  may  be 
proved  to  establish  both  its  existence  and 
contents.  Mauri  v.  Heffernan,  18  Johns. 
58,  74  ;  Thomas  v.  Harding,  8  Greenl.  417 ; 
Corbin  v.  Jackson,  14  Wend.  619.  [See 
also  ante,  §  96.]  A  copy  of  a  document, 
taken  by  a  machine,  worked  by  tlie  wit- 
ness who  produces  it,  is  admissible  as 
secondary  evidence.  Simpson  i\  Tliore- 
ton,  2  M.  &  Rob.  433.  [A  machine  copy 
of  a  letter  of  tlie  plaintiff  to  a  third  party 
was  received  as  evidence  of  an  admission 
on  his  part,  although  not  admissible  as  a 
letter.  Nathan  v.  Jacob,  1  F.  &  F.  452. 
A  copy  of  a  copy  of  a  lost  instrument 
ma}'  be  the  best  evidence  of  its  contents, 
and  therefore  admissible.  Wynu  v.  Pat- 
terson, 9  Pet.  (U.  S.)  63;  Oracle  i;.  Mor- 


CHAP.  VI.] 


PRIVATE  WEITESTGS. 


603 


§  559.  Production,  how  secured.  The  production  of  private  writ- 
ings, in  which  another  person  has  an  interest,  may  be  had  either 
by  a  bill  of  discovery,  in  proper  cases,  or  in  trials  at  law  by  a  writ 
of  subpoena  duces  tecum}  directed  to  the  person  who  has  them  in 
his  possession.  The  courts  of  common  law  may  also  make  an 
order  for  the  inspection  of  writings  in  the  possession  of  one  party 
to  a  suit  in  favor  of  the  other.  The  extent  of  this  power,  and  the 
nature  of  the  order,  whether  it  should  be  peremptory,  or  in  the 
shape  of  a  rule  to  enlarge  the  time  to  plead,  unless  the  writing 
is  produced,  does  not  seem  to  be  very  clearly  agreed  ;2  and,  in 
the  United  States,  the  courts  have  been  unwilling  to  exercise  the 
power  except  where  it  is  given  by  statute.^  It  seems,  however, 
to  be  agreed,  that  where  the  action  is  ex  contractu,  and  there  is 
but  one  instrument  between  the  parties,  which  is  in  the  posses- 
sion or  power  of  the  defendant,  to  which  the  plaintiff  is  either 
an  actual  party  or  a  party  in  interest,  and  of  which  he  has  been 
refused  an  inspection,  upon  request,  and  the  production  of  which 
is  necessary  to  enable  him  to  declare  against  the  defendant,  the 
court,  or  a  judge  at  chambers,  may  grant  him  a  rule  on  the  defend- 
ant to  produce  the  document,  or  give  him  a  copy  for  that  pur- 
pose.'*    Such  order  may  also  be  obtained  by  the  defendant  on  a 


ris,  22  Ark.  415.  So  a  copy  sworn  to  be 
correctly  made  from  a  press  copy  is  evi- 
dence of  its  contents,  without  producing 
the  press  copy.  Goodrich  v.  Weston,  102 
Mass.  362.] 

1  See  the  course  in  a  parallel  case, 
where  a  witness  is  out  of  the  jurisdiction, 
supra,  §  320.  It  is  no  sufficient  answer 
for  a  witness  not  obeying  this  subpoena, 
that  the  instrument  required  was  not  ma- 
terial. Doe  V.  Kelly,  4  Dowl.  273.  But 
see  Rex  v.-  Lord  John  Russell,  7  Dowl. 
693   [ante,  §  310]. 

2  Supra,  §  320.  If  the  applicant  has 
no  legal  interest  in  the  writing,  which  he 
requests  leave  to  inspect,  it  will  not  be 
granted.  Powell  i'.  Bradbury,  4  M.  G.  & 
S.  541 ;  13  Jur.  349.  And  see  supra, 
§  473. 

»  [By  the  act  of  Sept.  24,  1789  (1  U.  S. 
Stat,  at  Large, 82),  it  is  provided  that  the 
courts  of  the  United  States  "  shall  have 
power  in  all  actions  at  law,  on  motion  and 
due  notice  thereof  being  given,  to  require 
the  parties  to  produce  books  or  writings 
in  their  possession  or  power,  which  con- 
tain evidence  pertinent  to  the  issue,  in 
cases  and  under  circumstances  where 
they  might  be  compelled  to  produce  the 
same  by  the  ordinary  rules  of  proceeding 


in  chancery ; "  and  in  case  of  the  non- 
production  thereof  upon  such  order,  the 
court  may  direct  a  nonsuit  or  default. 
Under  this  statute,  an  order  to  produce 
may  be  applied  for  before  trial,  upon  no- 
tice. A  prima  facie  case  of  the  e.xistence 
of  the  paper  and  its  materiality  must  be 
made  out ;  and  the  court  will  then  pass  an 
order  nisi,  leaving  the  opposite  party  to 
produce  or  to  show  cause  at  the  trial, 
where  alone  the  materiality  can  be  finally 
decided.  lasigi  i'.  Brown,  1  Curtis,  0.  C. 
401.  For  other  decisions  under  tliis  sec- 
tion of  the  statute,  see  Hylton  v.  Brown, 
1  Wash.  C.  C.  208;  Bas  v.  Steele,  3 
Id.  381  ;  Dunham  v.  Riley,  4  Id.  126 ; 
Vasse  V.  Mifflin,  Id.  519.  In  EncjUind, 
under  a  statute  authorizing  interroga- 
tories to  the  opposite  party  as  to  any  mat- 
ter about  which  discovery  may  be  sought, 
it  is  held  that  the  interrogatories  should 
be  confined  to  such  matters  as  might  be 
discovered  by  a  bill  in  equity.  Whate- 
ley  V.  Crowter,  3  E.  &  B.  712.  See  also 
post,  vol.  iii.  §  290.] 

*  3  Chitty's  Gen.  Pr.  433,  434  ;  1 
Tidd's  Pr.  590-692;  1  Paine  &  Duer's 
Pr.  486-488;  Graham's  Practice,  p. 
524 ;  Lawrence  v.  Ocean  Ins.  Co.,  11 
Johns.  245,   n.  (a) ;  jacksou  v.  Jones,  3 


604 


LAW   OF  EVIDENCE. 


[part  in. 


special  case  ;  such  as,  if  there  is  reason  to  suspect  that  the  docu- 
ment is  forged,  and  the  defendant  wishes  that  it  may  be  seen  by 
himself  and  his  witnesses.^  But,  in  all  such  cases,  the  application 
should  be  supported  by  the  affidavit  of  the  party,  particularly 
stating  the  circumstances.^ 

§  560.  When  in  hands  of  adverse  party.  When  the  instrument 
or  writing  is  in  the  hands  or  power  of  the  adverse  party,  there  are, 
in  general,  except  in  the  cases  above  mentioned,  no  means  at  law 
of  compelling  him  to  produce  it ;  but  the  practice,  in  such  cases, 
is,  to  give  him  or  his  attorney  a  regular  notice  to  produce  the 
original.  Not  that,  on  proof  of  such  notice,  he  is  compellable 
to  give  evidence  against  himself,  but  to  lay  a  foundation  for  the 
introduction  of  secondary  evidence  of  the  contents  of  the  docu- 
ment or  writing,  by  showing  that  the  party  has  done  all  in  his 
power  to  produce  the  original.^ 


Cowen,  17;  Wallis  v.  Murray,  4  Cowen, 
399;  Denslow  v.  Fowler,  2  Cowen,  592  ; 
Davenport  v.  M'Kinnie,  5  Cowen,  27 ; 
Utica  Bank  i'.  Billiard,  6  Cowen,  62. 

1  Brush  V.  Gibbon,  3  Cowen,  18,  n.  (a). 

2  3  Cliitty's  Gen.  Pr.  434.  This  course 
being  so  seldom  resorted  to  in  the  Amer- 
ican common-law  courts,  a  more  particu- 
lar statement  of  the  practice  is  deemed 
unnecessary  in  this  place.  See  Law's 
U.  S.  Courts,  35,  36.  [In  England,  it  has 
been  held,  that,  under  the  Common-Law 
Procedure  Act  (1854),  17  &  18  Vict.  c. 
125,  the  court  will  not  grant  a  discovery 
of  documents  except  upon  the  affidavit  of 
the  party  to  the  suit ;  the  affidavit  of  the 
attorney  not  being  sufficient,  although  the 
party  himself  is  abroad.  Herschfield  v, 
Clark,  34  Eng.  Law  &  Eq.  549.  But, 
in  the  case  of  a  corporation,  the  affidavit 
may  be  made  by  attorney.  Bull  v. 
Clarke,  15  C.  B.  n.  8.851.  Before  a  party 
can  be  called  upon  to  produce  a  document 
for  the  purposes  of  evidence,  it  must  be 
shown  that  it  is  in  his  possession.  La.\- 
ton  ('.  Reynolds,  28  Id.  553.  It  is  not  an 
answer  to  an  application  for  an  order 
for  a  discovery  of  documents,  that  they 
are  privileged  from  being  produced  ;  if 
such  be  the  fact,  it  must  be  shown  in  the 
affidavit  made  in  obedience  to  the  order. 
Eorshaw  v.  Lewis,  29  Id.  488.  The  right 
of  a  plaintiff  under  the  statute  (14  & 
15  Vict.  c.  99)  to  inspect  deeds  in 
the  defendant's  custody,  where  such  a 
right  e.xists,  is  not  limited  by  what  is 
necessary  to  make  out  a  jn-ima  facie  case ; 
but  ii  extends  to  any  deeds  which  may 
tend  to  support  or  strengthen  the  case  on 
the  part  of  the  plaintiff.     The  rule  that 


one  party  has  no  right  to  inspect  docu- 
ments which  make  out  the  title  of  the 
other  does  not  apply,  if  they  also  make 
out  his  own.  Coster  v.  Baring,  Id.  365. 
And  it  seems  that  in  most  cases  the  de- 
fendant will  be  entitled  to  an  inspection 
of  his  own  letters,  in  the  hands  of  the 
opposite  party,  when  the  action  is  based 
upon  evidence  contained  in  them,  where 
no  copies  were  retained  and  the  inspec- 
tion was  necessary  to  the  defence. 
Price  V.  Harrison,  8  C.  B.  n.  s.  617.  And 
so  also  a  plaintiff,  who  claimed  damages 
of  a  railway  company  for  dismissing  him 
from  the  office  of  superintendent,  it  was 
held  that  he  was  entitled  to  have  an  in- 
spection of  all  entries  or  minutes  in  the 
company's  books  having  reference  to  his 
employment.  Hill  v.  Great  Western 
Railway  Co.,  10  C.  B.  n.  s.  148.  But  the 
defendant  is  not  entitled  to  inspect  his 
own  letters  to  the  plaintiff,  in  an  action 
for  breach  of  promise  of  marriage,  upon 
an  affidavit,  that  the  promise,  if  any,  was 
contained  in  the  letters.  Hamer  v.  Sow- 
erby,  3  Law  T.  n.  s.  Q.  B.  734.  And  the 
court  will  not  grant  an  inspection  of 
documents  produced  at  the  trial,  with  a 
view  to  discover  grounds  to  move  a  new 
trial.  Pratt  v.  Goswell,  9  C.  B.  N.  8. 
706.] 

8  2  Tidd's  Pr.  802;  1  Paine  &  Duer's 
Pr.  483 ;  Graham's  Practice,  p.  528.  No- 
tice to  produce  the  instrument  is  not 
alone  sufficient  to  admit  the  party  to  give 
secondary  evidence  of  its  contents.  He 
must  prove  the  existence  of  the  original. 
Sharpe  i;.  Lambe,  3  P.  &  D.  454.  He 
must  also  show  that  the  instrument  is  in 
the  possession,  or  under  the  control,  of 


CHAP.  VI.] 


PRIVATE   WRITINGS. 


605 


§  561.  Notice  to  produce.  There  are  tTiree  cases  in  wliich  such 
notice  to  produce  is  not  necessary.  First,  where  the  instrument  to 
be  produced  and  that  to  be  proved  are  duplicate  originals ;  for,  in 
such  case,  the  original  being  in  the  hands  of  the  other  party,  it  is 
in  his  power  to  contradict  the  duplicate  original  by  producing  the 
other,  if  they  vary ;  ^  secondly,  where  the  instrument  to  be  proved 
is  itself  a  notice^  such  as  a  notice  to  quit,  or  notice  of  the  dishonor 


the  party  required  to  produce  it.  Smith 
V.  Sle-ap,  ]  Car.  &  lurw.  48.  But  of  this 
fact  very  slight  evidence  will  raise  a 
sufficient  presumption,  where  the  instru- 
ment exclusively  belongs  to  him,  and  has 
recently  been,  or  regularly  ought  to  be, 
in  his  possession,  according  to  the  course 
of  business.  Henry  v.  Leigh,  3  Campb. 
499,  502  ;  Harvev  v.  Mitchell,  2  M.  &  Rob. 
366;  Robb  v.  Starkey,  2  C.  &  K.  143. 
And  if  the  instrument  is  in  the  possession 
of  another,  in  privity  with  the  party,  such 
as  his  banker,  or  agent,  or  servant,  or  the 
like,  notice  to  the  party  himself  is  suffi- 
cient. Baldney  v.  Ritchie,  1  Stark.  338; 
Sinclair  v.  Stevenson,  1  C.  &  P.  582;  Bur- 
ton V.  Pavne,  2  C.  &  P.  520 ;  Partridge 
V.  Coates.'Ry.  &  M.  153,  156;  Taplin  v. 
AUy,  3  Bing.  101.  If  a  deed  is  in  the 
liands  of  an  attorney,  having  a  lien  upon 
it,  as  security  for  money  due  from  his 
client,  on  which  ground  he  refuses  to  pro- 
duce it  in  obedience  to  a  subpoena  duces 
tecum,  as  he  justly  may  (Kemp  v.  King,  2 
M.  &  Rob.  437  ;  Reg.  v.  Hankins,  2  C. 
&  K.  823),  the  party  calling  for  it  may 
give  secondary  evidence  of  its  contents. 
Doe  V.  Ross,  7  M.  &  VV.  102.  So,  if  the 
deed  is  in  court,  in  the  hands  of  a  third 
person  as  mortgagee,  wlio  has  not  been 
subpoenaed  in  the  cause,  and  he  declines 
to  produce  it,  secondary  evidence  of  its 
contents  is  admissible  ;  but  if  the  deed  is 
not  in  court,  and  he  has  not  been  sub- 
poenaed, it  is  otlierwise.  In  such  case,  the 
person  having  custody  of  the  deed  must 
only  state  the  date  and  names  of  the  par- 
ties, in  order  to  identify  it.  Doe  v.  Clif- 
ford, 2  C.  &  K.  448.  The  notice  to  pro- 
duce may  be  given  verbally.  Smith  v. 
Young,  1  Campb.  440.  After  notice  and 
refusal  to  produce  a  paper,  and  secondary 
evidence  given  of  its  contents,  the  ad- 
verse party  cannot  afterwards  produce 
the  document  as  his  own  evidence.  Doe 
V.  Hodgson,  4  P.  &  D.  142;  s.  c.  12  Ad. 
&  El.  135.  [Where  the  plaintiff  gave  no- 
tice to  the  defendant  to  produce  at  the 
trial  an  original  contract,  and  affixed  what 
purported  to  be  a  copy  of  it  to  the  notice, 
and,  although  the  pretended  copy  was  not 
in  all  respects  correct,  secondary  evidence 


was  allowed  on  the  neglect  of  the  defend- 
ant to  produce  the  original,  it  was  held, 
that  the  defendant  could  nut  use  the 
copy  attached  to  the  notice,  although  cer- 
tified to  be  correct  by  the  plaintiff,  while 
he  had  the  original  in  his  possession. 
Bogart  V.  Brown,  5  Pick.  18.  In  New 
York,  it  has  been  held  that  certain  courts 
have  authority  to  compel  a  defendant  in 
a  suit  pending  therein  to  produce  and  dis- 
cover books,  papers,  and  documents,  in 
his  possession  or  power,  relating  to  the 
merits  of  such  suit ;  and  if  the  defendant 
refuses  to  comply,  his  answer  may  be 
stricken  out,  and  judgment  rendered 
against  him  as  for  a  neglect  to  answer. 
Gould  V.  McCarty,  1  Kernan,  575.  In 
Georgia,  a  party  may  be  required,  in  a 
proper  case,  to  produce  documents  to  be 
annexed  to  interrogatories  propounded 
by  the  party  calling  for  them  ;  the  courts 
requiring  that  a  copy  of  the  documents 
shall  be  left  in  the  place  of  the  original, 
to  be  used  as  such  in  case  the  original  be 
not  returned,  and  that  the  party  calling 
for  the  document  shall  give  security  to 
the  party  producing  it,  for  its  being  safely 
returned.  Faircloth  v.  Jordan,  15  Geo. 
511.  Where  the  counsel  in  a  case  have 
agreed  that  either  party  shall  produce, 
upon  notice  at  the  trial,  any  papers  which 
may  be  in  his  possession,  the  failure  of 
the  plaintiff  (the  agent  in  America  of  a 
firm  in  London)  to  produce  upon  such 
notice  an  invoice  of  goods  consigned  to 
his  principals  in  London,  is  not  such  a 
failure  to  comply  witji  the  agreement  as 
will  admit  parol  testimony  of  the  contents 
of  the  invoice;  for  it  is  to  be  presumed 
that  the  invoice  had  been  forwarded  to 
the  consignees.  The  offer  of  the  plaintiff 
to  prove  that  such  was  tiie  fact,  and  the 
concession  without  proof  by  the  defend- 
ant that  it  was  so,  preclude  him  from 
afterwards  objecting  that  proof  was  not 
given.  Turner  v.  Yates,  16  How.  (U.  S.) 
14.1 

1  Jury  V.  Orchard,  2  B.  &  P.  .39,  41; 
Doe  V.  Somerton,  7  Ad.  &  El.  n.  s.  58 ; 
8.  c.  9  Jur.  775;  Swain  v.  Lewis,  2  C.  M. 
&  R.  261. 


606 


LAW   OF  EVIDENCE. 


[part  ni. 


of  a  bill  of  exchange  ;  and,  thirdly,  where,  from  the  nature  of  the 
action,  the  defendant  has  notice  that  the  plaintiff  intends- to  charge 
him  with  possession  of  the  instrument,  as,  for  example,  in  trover 
for  a  bill  of  exchange.  And  the  principle  of  the  rule  does  not 
require  notice  to  the  adverse  party  to  produce  a  paper  belong- 
ing to  a  third  person,  of  which  he  has  fraudulently  obtained  pos- 
session ;  as  where,  after  service  of  a  subpoena  duces  tecum,  the 
adverse  party  had  received  the  paper  from  the  witness  in  fraud 
of  the  subpoena.^ 


1  2  Tidd's  Pr.  803.    Proof  that  the  ad- 
verse part3%  or  his  attorney,  has  the  in- 
Btrumc-nt  in  court,  does  not,  it  seems,  ren- 
der notice  to  produce  it  unnecessary  ;  for 
the  object  of  the  notice  is  not  only  to 
procure  the  paper,  but  to  give  the  party 
an   opportunity   to    provide   the   proper 
testimony    to    support    or    impeach    it. 
Doe  V.  Grey,  1  Stark.  283;  Exall  v.  Par- 
tridge,  Id.  cit.;    Knight   v.   Marquis  of 
Waterford,  4  Y.  &  Col.  284.     [But  this 
rule    has    been    abrogated    (if    it   ever 
was     law,    which     seems     doubtful)    in 
England.      It    is    now    held    there  that 
the  object  of  a  motion  to  produce  in  such 
a  case   is   merely  to   give   the   opposite 
party  sufficient  opportunity  to  produce, 
if  he  pleases,  and  not  to  enable  him  to 
prepare  evidence  to  explain,  nullify,  or 
confirm   it;    and,    therefore,    when    the 
document  is  in  court  at  the  time  of  the 
trial,  a  notice  to  produce  it  immediately 
is  sufficient  to  render  secondary  evidence 
of  its  contents  admissible,  if  it  be  not  pro- 
duced.   Dwyer  v.  Collins,  12  Eng  L.  &  Eq. 
5o2;  9.  c.  7  Ex.  639.     And  an  attorney 
is    bound   to   answer    whether   a   docu- 
ment is  in  his  possession,  or  elsewhere  in 
court.     Ibid. ;  Brandt  v.  Klein,  17  Johns. 
Sou ;  Rhoades  v.  Selin,  4  Wash.  C.  C.  718. 
A  notice  need  not  be  given  when  the  ad- 
verse party  has  fraudulently  or  forcibly 
obtained  possession  of  it,  as  when,  after 
action  brought,  he  has  received  it  from  a 
witness  in  fraud  of  a  ilnrcs  tecum.    Leeds  v. 
Cook,4  Esp.  256  ;  Doe  v.  Hies,  7  Bing.  724. 
Nor  where  the  papers  are  beyond  the  jur- 
isfliction  of  tlie  court.     Burton  v.  Driggs, 
20   Wall.    (U.  S.)    125.      See    also    Doe 
V.  Spitty,  3  A.  &  E   182.     Nor  where  the 
adverse  party  has  admitted  tiie  loss  of  the 
document.     Rex  v.   llaworth,  4  C.  &  P. 
254 ;  Doe  v.  Spitty,  3  B.  &  Ad.  187.     Nor 
when  the  party  in  possession  might  him- 
self give  secoiulary  evidence  of  its  con- 
tents.   Bartholomew  r.  Stevens,  8  C.  &  P. 
728.    But  a  party  cannot,  on  proof  of  the 
destruction  of  a  document  by  his  oppo- 
nent, give  secondary  evidence  without  no- 


tice ;  because  the  document  may  still  be 
in  existence,  a  fact  which  his  opponent, 
may  show.     Doe  v.  Morris,  3  A.  &  E.  46.] 
The  rule,  as  to  dispensing  with  notice, 
is    the    same    in    equity   as  at   law.     2 
Dan.  Ch.  Pr.   1023.     [A  rule  of   court, 
that  a  notice  to  produce  a  paper   must 
precede  parol  evidence  of  its  contents, 
is  waived  by  a  party's  offering  to  pro- 
duce  it.     If    he    then    fails    to  find  it, 
but  asks  for  no  further  time,  the  parol 
evidence  is  admissible.     Dwinell  v.  Lar- 
rabee,  38  Maine,  461.     For  the  purpose 
of  proving  that  the  defendant  has  fraud- 
ulently conveyed  his  real  estate  to  third 
persons,  copies  of  the  deeds  thereof  from 
the  registry  are  admissible,  the  originals 
not   being   presumed   to   be  in  the  pos- 
session of  eitiier  party  to  the  suit.   Blan- 
chard  v.  Young,  11  Cush.  341,  345.     But 
a  registry  copy  of  a   deed  of  land  is  not 
admissible  in  evidence  against  the  grantee, 
witliout   notice   to   him  to  produce    the 
original.      Commonwealth  v.    Emery,  2 
Gray,  80,  81 ;  Bourne  v.  Boston,  Id.  494, 
407.     In  delivering  the  opinion    of    the 
court   in   Commonwealth    v.    Emery,   xtt 
supra,  Shaw,  C.  J.,  said,  "The  rule,  as  to 
the  use  of  deeds  as  evidence,  in  this  Com- 
monwealth,  is   founded    partly   on    the 
rules  of    common  law,  but  modified  to 
some    extent     by   the    registry   system 
established  here  by  statute.     The  theory 
is  this:  that  an  original  deed   is  in   its 
nature   more   authentic  and  better  evi- 
dence than  any  copy  can  be;  that  a  copy 
is  in  its  nature  secondary  ;  and  therefore 
in  all  cases  original  deeds  should  be  re- 
quired, if  they  can  be  had.     But  as  this 
would  be  burdensome  and  expensive,  if 
not  impossible,  in  many  cases,  some  re- 
laxation of  this  rule  was  necessary  for 
practical   purposes.     The    law    assumes 
that  the  grantee  is  the  keeper  of  deeds 
made  directly  to  himself;  when,  then,  he 
has  occasion  to  prove  any  fact  by  such 
deed,  he  cannot  use  a  copy,  because  it 
would  be  offering  inferior  evidence,  when 
in  theory  of  law   the   superior  is  in  hia 


CHAP.  VI.] 


PRIVATE  WRITnTGS. 


607 


§  562.  To  whom  directed.  The  notice  may  be  directed  to  the 
party  or  to  his  attorney,  and  may  he  served  on  either;  and  it  must 
describe  the  writing  demanded,  so  as  to  leave  no  doubt  that  the 
party  was  aware  of  the  particular  instrument  intended  to  be  called 
for.i  But  as  to  the  time  and  place  of  the  service  no  precise  rule 
can  be  laid  down,  except  that  it  must  be  such  as  to  enable  the 
party,  under  the  known  circumstances  of  the  case,  to  comply  with 
the  call.  Generally,  if  the  party  dwells  in  another  town  than  that 
in  which  the  trial  is  had,  a  service  on  him  at  the  place  where  the 
trial  is  had,  or  after  he  has  left  home  to  attend  the  court,  is  not 
sufficient.2  But  if  the  party  has  gone  abroad,  leaving  the  cause 
in  the  hands  of  his  attorney,  it  will  be  presumed  that  he  left  with 
the  attorney  all  the  papers  material  to  the  cause,  and  the  notice 
should  therefore  be  served  on  the  latter.  The  notice,  also,  should 
generally  be  served  previous  to  the  commencement  of  the  trial.^ 


own  possession  or  power.  It  is  only  on 
proof  of  the  loss  of  the  original,  in  such 
case,  that  any  secondary  evidence  can  be 
received.  Our  system  of  conveyancing, 
modified  by  the  registry'  law,  is,  that  each 
grantee  retains  the  deed  made  immedi- 
ately to  himself,  to  enable  him  to  make 
good  his  warranties.  Succeeding  gran- 
tees do  not,  as  a  matter  of  course,  take 
possession  of  deeds  made  to  preceding 
parties,  so  as  to  be  able  to  prove  a  chain 
of  title,  by  a  series  of  original  deeds. 
Every  grantee,  therefore,  is  the  keeper  of 
his  own  deed,  and  of  his  own  deed  only. 
But  there  is  another  rule  of  practice 
arising  from  the  registry  law,  and  the 
usage  under  it,  which  is,  that  all  deeds, 
before  being  offered  in  evidence  as  proof 
of  title,  must  be  registered.  The  reg- 
ister of  deeds,  therefore,  is  an  officer  of 
the  law,  with  competent  authority  to  re- 
ceive, compare,  and  record  deeds ;  his 
certificate  verifies  the  copy  as  a  true 
transcript  of  the  original,  and  the  next 
best  evidence  to  prove  the  existence  of 
the  deed ;  though  it  follows  as  a  conse- 
quence, that  such  copy  is  legal  and  com- 
petent evidence,  and  dispenses  with  origi- 
nal proof  of  its  execution  by  attesting 
witnesses.  In  cases,  therefore,  in  which 
the  orignal,  in  theory  of  law,  is  not  in 
the  custody-  or  power  of  the  party  having 
occasion  to  use  it,  the  certified  office  copy 
is  prima  facie  evideuce  of  the  original  and 
its  execution,  subject  to  be  controlled  by 
rebutting  evidence.  But  as  this  arises 
from  the  consideration,  that  the  original 
is  not  in  the  power  of  the  party  relying 
on  it,  the  rule  does  not  apply,  wliere  such 
original  is,  in  theory  of  law,  in  po^ession 


of  the  adverse  party ;  because  upon 
notice  the  adverse  party  is  bound  to  pro- 
duce it,  or  put  himself  in  such  position, 
that  any  secondary  evidence  may  be 
given.  Should  it  be  objected  that,  upon 
notice  to  the  adverse  party  to  produce  an 
original,  and  the  tender  of  a  papei*  in 
answer  to  the  notice,  the  party  calling 
for  the  deed  might  deny  that  the  paper 
tendered  was  the  true  paper  called  for, 
it  would  be  easy  to  ascertain  the  identity 
of  the  paper,  by  a  comparison  of  the  con- 
tents of  the  paper  tendered  with  the 
copy  offered,  and  by  the  official  certifi- 
cate, which  the  register  of  deeds  is  re- 
quired to  make  on  the  original,  when  it 
is  recorded.  This  construction  of  the 
rule  will  carry  out  the  principle  on  which 
it  is  founded,  to  insist  on  the  better  evi- 
dence when  it  can  practically  be  had,  and 
allow  the  secondary  only  when  it  is  nec- 
essary." See,  as  to  fraud,  or  the  form  of 
the  action,  excusing  notice  to  produce 
papers  in  the  hands  of  the  adversary, 
Nealley  v.  Greenough,  5  Foster,  325. 
But  where  the  notice  is  an  act  of  pos- 
session, warning  others  of  the  plaintiff's 
claim,  a  copy  is  not  evidence,  until  the 
absence  of  the  original  is  accounted  for. 
Lombardo  v.  Ferguson,  15  Cal.  372.] 

1  Rogers  v.  Custancc,  2  M.  &  Rob.  179. 

2  George  v.  Thompson,  4  Dowl.  056; 
Foster  v.  Pointer,  9  C.  &P.  718  [Glenn 
V.  Rogers,  3  Md.  312].  See,  also,  as  to  the 
time  of  service.  Holt  v.  Miers,  9  C.  &  P. 
191;  Reg.  v.  Kitscn,  20  Eng.  L.  &  Eq. 
590.  As  to  the  form  and  service  of 
notice  to  quit,  see  f>ost,  vol.  ii.  §§322-324; 
Doe  V.  Somerton,  7  Ad.  &  El.  58. 

8  2  Tidd's  Pr.  803;  Hughes  v.  Budd, 


608 


LAW   OF  EVIDENCE. 


[part  m. 


§  563.  "When  papers  may  be  called  for.  The  regular  time  for  call- 
ing for  the  production  of  papers  is  not  until  tlie  party  who  requires 
them  has  entered  upon  his  case ;  until  which  time  the  other  party 
may  refuse  to  produce  them,  and  no  cross-examination,  as  to  their 
contents,  is  usually  permitted.^  The  production  of  papers,  upon 
notice,  does  not  make  them  evidence  in  the  cause,  unless  the  party 
calling  for  them  inspects  them,  so  as  to  become  acquainted  with 
their  contents  ;  in  which  case,  the  English  rule  is,  that  they  are 
admitted  as  evidence  for  both  parties.^  The  reason  is,  that  it 
would  give  an  unconscionable  advantage  to  enable  a  party  to  pry 
into  the  affairs  of  his  adversary  for  the  purpose  of  compelling  him 
to  furnish  evidence  against  himself,  without,  at  the  same  time, 
subjecting  him  to  the  risk  of  making  whatever  he  inspects  evi- 
dence for  both  parties.  But  in  the  American  courts,  the  rule  on 
this  subject  is  not  uniform.^ 

§  564.  Alterations.  If,  on  the  production  of  the  instrument,  it 
appears  to  have  been  altered^  it  is  incumbent  on  the  party  offering 
it  in  evidence  to  explain  this  appearance.*     Every  alteration  on 


8  Dowl.  315;  Firkin  v.  Edwards,  9  C.  & 
P.  478 ;  Gibbons  v.  Powell,  Id.  634  ;  Bate 
V.  Kinsey,  1  C.  M.  &  R.  38 ;  Emerson  v. 
risk,  6  Greenl.  200;  1  Paine  &  Duer's 
Pr.  485,  486.  [In  Cliattaes  v.  Raitt,  it  is 
also  said,  that,  as  a  general  rule,  tlie  notice 
must  be  given  before  the  trial.  20  Ohio, 
132.  But  this  is  a  preliminary  question, 
for  the  discretion  of  the  court.  Ante, 
§  49,  note  sub  Jinem.  And  see  Sturm  v. 
Jeffries,  2  C.  &  K.  442.  Unnecessary  in- 
convenience must  not  be  imposed  upon 
the  party  notified.  Poster  v.  Pointer,  9 
C.  &  P.  720.]  The  notice  must  point  out, 
with  some  degree  of  precision,  the  papers 
required.  Notice  to  produce  "all  letters, 
])apers,  and  documents  touching  or  con- 
cerning the  bill  of  excliange  mentioned 
in  the  declaration,  and  the  debt  sought  to 
be  recovered,"  lias  been  held  too  gen- 
eral. Prance  v.  Lucy,  Ry.  &  M.  841. 
So,  "  to  produce  letters,  and  copies  of 
letters,  and  all  books  relating  to  tliis 
cause."  Jones  v.  Edwards,  1  McCl.  & 
Y.  139.  But  notice  to  produce  all  letters 
written  by  the  party  to  and  received  by 
the  other,  between  the  years  1837  and 
1841,  inclusive,  was  held  sufficient  to 
entitle  tiie  party  to  call  for  a  particular 
letter.  Morris  v.  Ilauser,  2  M.  &  Rob. 
392. 

I  Supra,  §§  447,  463,  404.  [But  where 
the  plaintiff  on  his  examination  in  chief 
denies  the  existence  of  a  written  con- 
tract, the  defendant  may  interpose,  and 


give  evidence  upon  a  collateral  issue, 
whether  there  was  a  written  contract, 
before  the  plaintiff  is  allowed  to  give 
evidence  of  its  terms.  Cox  v.  Couveless, 
2  F.  &  F.  139.] 

2  2  Tidd's  Pr.  804  ;  Calvert  v.  Flower, 
7  C.  &  P.  386.  [So  in  Maine.  Blake  v. 
Russ,  33  Maine,  360.] 

3  1  Paine  &  Luer's  Pr.  484 ;  Withers 
V.  Gillespy,  7  S.  &  R.  14.  The  English 
rule  was  adopted  in  Jordan  i'.  Wilkins,  2 
Wash.  C.  C.  482,  484,  n. ;  Randel  v. 
Chesapeake  &  Del.  Can.  Co.,  1  Harringt. 
233,  284 ;  Penobscot  Boom  Corp.  v.  Lam- 
son,  4  Shepl.  224;  Anderson  v.  Root,  8 
Sm.  &  M.  362  ;  Commonwealth  v.  David- 
son, 1  Cush.  33.  [A  party  who  produces 
a  paper  at  the  trial  on  the  call  of  tlie  ad- 
verse party  is  not  entitled  to  read  such 
paper  in  evidence  for  himself,  after  the 
party  calling  for  it  has  inspected  it,  and 
declined  to  read  it,  unless  it  appear  to  be 
the  identical  instrument  called  for.  Reed 
V.  Anderson,  12  Cush.  481  ;  Clark  v. 
Fletcher,  1  Allen,  53.  But  in  New  Hamp- 
shire (Austin  V.  Thompson,  45  N.  H.),  the 
English  rule,  stated  above,  is  denied.] 

*  The  Roman  civil  law  on  the  sub- 
ject of  alterations  agrees  in  the  main  with 
the  common  law ;  but  the  latter,  in  this 
as  in  other  cases,  has  greatly  the  advan- 
tage, in  its  facility  of  adaptation  to  the 
actual  state  of  the  facts.  The  general 
rule  is  the  same  in  both  codes.  "  Rasa 
scriptura  falsa  praesumitur,  et  tanquam 


CHAP.  VI.] 


PEIVATE   WRITINGS. 


609 


the  face  of  a  written  instrument  detracts  from  its  credit,  and  ren- 
ders it  suspicious  ;  and  this  suspicion  the  party  chiiming  under  it 
is  ordinarily  held  bound  to  remove.^  If  the  alteration  is  noted  in 
the  attestation  clause  as  having  been  made  before  the  execution 
of  the  instrument,  it  is  sufficiently  accounted  for,  and  the  instru- 
ment is  relieved  from  that  suspicion.  And  if  it  appears  in  the 
same  handwriting  and  ink  with  the  body  of  the  instrument,  it 
may  suffice.  So,  if  the  alteration  is  against  the  interest  of  the 
party  deriving  title  under  the  instrument,  as,  if  it  be  a  bond  or 
note,  altered  to  a  less  siun,  the  law  does  not  so  far  presume  that 


falsa  rejicitur  ;  prffisertim  quando  rasura 
facta  est  per  eum,  qui  utitur  instruinento 
raso."  IMascard.  vol.  iv. ;  Concl.  1261,  n. 
1,  3.  But  if  immaterial,  or  free  from 
suspicion,  an  alteration  or  rasure  does 
not  vitiate.  "  Si  rasura  non  sit  in  loco 
substantiali,  et  suspecto,  non  reddit  fal- 
sum  instrunientum."  Id.  n.  9.  If  it  ap- 
peared, on  its  face,  to  be  the  autography 
of  the  notary  who  drew  the  instrument, 
that  is,  a  contemporaneous  act,  it  was 
by  some  deemed  valid;  "  quamvis  scrip- 
tura  sit  abrasa  in  parte  substantiali,  sed 
ita  bene  rescripta,  ut  aperte  dignoscatur, 
id  manu  ejusdem  Notarii  fuisse."  Id.  n. 
14.  But  others  contended,  that  this  was 
not  sufHcient  to  remove  all  suspicion, 
and  render  tiie  instrument  valid,  unless 
the  alteration  was  mentioned  and  ex- 
plained at  the  end  of  the  instrument.  "  Si 
Notarius  erravit  in  scriptura,  ita  ut 
oporteat  aliquid  radere  et  reponere,  vel 
facere  aliquam  lineam  in  margine,  debet, 
ad  evitandam  suspicionem,  in  fine  scrip- 
turas  ac  chirographi  continuando  facere 
mentionem,  qualiter  ipse  abrasit  tale 
verbum,  in  tali  linea,  vel  facit  talem  line- 
am  in  margine."  Id.  n.  16.  But,  in  the 
absence  of  all  evidence  to  the  contrary, 
it  seems  that  alterations  were  presumed 
to  be  contemporaneous  with  the  execu- 
tion of  the  instrument.  "  In  dubio  aulem 
hujusmodi  abrasiones  seu  cancellationes 
prresumuntur  semper  factce  tempore  con- 
ccptionis  scripturse,  antcquam  absoluta 
fuerit."  Id.  n.  18.  If  the  suspicion, 
arising  from  the  alteration  when  consid- 
ered by  itself,  were  removed,  by  taking 
it  in  connection  with  the  context,  it  was 
sufficient;  —  "cum  verba  antecedentia 
et  sequentia  demonstrant  necessario  ita 
esse  legendum,  ut  in  rasura  scripturae 
reperitur."  Id.  n.  19.  The  instrument 
might  also  be  held  good  at  the  discretion 
of  the  judge,  if  the  original  reading  were 
still  apparent,  —  "  si  sensus  rectus  per- 
cipi  potest,"  —  notwithstanding  the  ra- 
sure, Id.  n.  20 ;  or  if  the  part  erased 
VOL.  I.  39 


could  be  ascertained  by  other  instru- 
ments;—  "si  per  alias  scripturas  pars 
abrasa  declarari  possit."  Id.  n.  21.  If  the 
instrument  were  produced  in  court  by 
the  adverse  part}',  upon  legal  compul- 
sion, no  alterations  apparent  upon  it 
were  permitted  to  operate  to  the  preju- 
dice of  the  instrument,  against  the  party 
calling  for  its  production.  "  Si  scriptura, 
ac  instrunientum  reperiatur  penes  adver- 
sarium,  et  judex  eum  cogit  tale  instru- 
nientum exhibere  in  judicio;  quamvis 
enim  eo  casu  scriptura  sit  abrasa  in 
parte  substantiali ;  tamen  non  vitiata, 
nee  falsa  redditur  contra  me,  et  in  mei 
praejudicium  ;  imo,  ei  prsstatur  fides  in 
omnibus,  in  quibus  ex  ilia  potest  sumi 
sensus ;  praesumitur  enim  adversariura 
dolose  abrasisse.  Abrasio,  sive  cancella- 
tio,  pr£esuniitur  facta  ab  eo  penes  quern 
repetitur  instrumentem."  Id.  n.  22,  23. 
And  if  a  written  contract  or  act  were  ex- 
ecuted in  duplicate,  an  alteration  of  one 
of  the  originals  was  held  not  to  operate 
to  the  injury  of  the  other.  "  Si  de  eadem 
re,  et  eodem  contractu,  fuerint  confectae 
duas  scripturtB,  sive  instrumenta,  abrasio 
in  uno  harum  scripturarum,  etiam  sub- 
stantiali loco  est  alterum  non  vitiat."  Id. 
n.  24. 

1  Perk.  Conv.  55 ;  Henman  v.  Dickin- 
son, 5  Bing.  183,  184  ;  Knigiit  v.  Clem- 
ents, 8  Ad.  &  El.  215 ;  Newcombe  v.  Pres- 
brey,  8  Met.  40G.  But  where  a  farm  was 
devised  from  year  to  year  bj*  parol,  and 
afterwards  an  agreement  was  signed,  con- 
taining stipulations  as  to  the  mode  of  till- 
age, for  breach  of  which  an  action  was 
brougiit,  and,  on  producing  the  agree- 
ment, it  appeared  that  the  term  of  years 
had  been  written  seven,  but  altered  to 
fourteen  ;  it  was  held  that  this  alteration, 
being  immaterial  to  the  parol  contract, 
need  not  be  explained  by  the  plaintiff, 
Earl  of  Falmouth  i-.  Roberts,  9  INI.  &  W. 
4(39.  See  further,  Cariss  v.  Tattershall, 
2  Man.  &  Gr.  890;  Clifford  v.  Parker,  Id. 
909. 


610 


LAW   OF  EVIDENCE. 


[PAET  in. 


it  was  improperly  made  as  to  throw  on  him  the  burden  of  account- 
ing for  it.i  And,  generally  speaking,  if  nothing  appears  to  the 
contrary,  the  alteration  will  be  presumed  to  be  contemporaneous 
with  the  execution  of  the  instrument.^  But  if  any  ground  of  sus- 
picion is  apparent  upon  the  face  of  the  instrument,  the  law  pre- 
sumes nothing,  but  leaves  the  question  of  the  time  when  it  was 
done  as  well  as  that  of  the  person  by  whom,  and  the  intent  with 
which,  the  alteration  was  made,  as  matters  of  fact,  to  be  ultimately 
found  by  the  jury  upon  proofs  to  be  adduced  by  the  party  offering 
the  instrument  in  evidence.'^ 


1  Bailey  v.  Taylor,  11  Conn.  531 ; 
Coiilson  V.  Walton,  9  Pet.  789. 

2  Trowell  v.  Castle,  1  Keb.  22  ;  Fitz- 
gerald V.  Fauconberg,  Fitzg.  207,  218 ; 
Bailey  v.  Taylor,  11  Conn.  531,  534; 
Gooch  V.  Bryant,  1  Shepl.  386,  390 ;  Crab- 
tree  V.  Clark,  7  Shepl.  337  ;  Vanliorne  v. 
Dorrance,  2  Dall.  306.  And  see  PuUen 
V.  Hutchinson,  12  Shepl.  249,  2-54;  Wick- 
off's  Appeal,  3  Am.  Law  Jour.  n.  s.  493, 
503.  In  Morris  v.  Vanderen,  1  Dall.  67, 
and  Prevost  v.  Gratz,  1  Pet.  C.  C.  364, 
869,  it  was  held,  that  an  alteration 
should  be  presumed  to  have  been  made 
after  the  execution  of  the  instrument ; 
but  this  has  been  overruled  in  tlie  United 
States  as  contrary  to  the  principle  of  tlie 
law,  which  never  presumes  wrong.  The 
reporter's  marginal  notes  in  Burgoyne  c. 
Showier,  1  Rob.  Eccl.  5,  and  Cooper  v. 
Brockett,  4  Moore,  P.  C.  C.  419,  state  the 
broad  proposition,  tliat  alterations  in  a, 
will,  not  accounted  for,  are  prima  facie 
presumed  to  have  been  made  after  its 
execution.  But,  on  examination  of  tliese 
cases,  they  are  found  to  turn  entirely  on 
the  provisions  of  the  Statute  of  Wills,  1 
Vict.  c.  26,  §  21,  which  directs  that  all 
alterations,  made  before  the  execution 
of  the  will,  be  noted  in  a  memorandum 
upon  tlie  will,  and  attested  by  tlie  testa- 
tor and  witnesses.  If  this  direction  is 
not  complied  with,  it  may  well  be  pre- 
sumed that  the  alterations  were  subse- 
quently made.  And  so  it  was  held, 
upon  the  language  of  that  statute,  and 
of  the  Statute  of  Frauds  respecting  wills, 
in  Doe  v.  Palmer,  15  Jur.  83(3,  839 ;  in 
whicli  the  case  of  Cooper  v.  Brockett 
was  cited  by  Lord  Campbell,  and  ap- 
proved, upon  the  ground  of  the  statute. 
The  ai)plication  of  this  rule  to  deeds  was 
denied  in  Doe  v.  Catamore,  15  Jur.  728  ; 
5  Eng.  Law  &  Rep.  319  [and  cases  cited 
in  note]  ;  where  it  was  held,  t^hat  if  tlie 
contrary  be  not  proved,  the  interlineation 
in  a  deed  is  to  be  presumed  to  have  been 


made  at  the  time  of  it.s  execution.  And 
see  Co.  Lit.  225  (h)  and  note  by  Butler; 
Best  on  Presumptions,  §  75.  [Nor  is  it 
applicable  to  resolutions  and  other  offi- 
cial documents.  Stevens's  Hospital  v. 
Dyas,  15  Ir.  Eq.  n.  s.  405.] 

In  the  case  of  alterations  in  a  will,  it 
was  held,  in  Doe  v.  Palmer,  supra,  that 
the  declarations  of  the  testator  were 
admissible  to  rebut  the  presumption  of 
fraud  in  the  alterations.  [In  the  absence 
of  evidence  or  circumstances  from  which 
an  inference  can  be  drawn  as  to  the  time 
when  it  was  made,  every  alteration  of 
an  instrument  will  be  presumed  to  have 
been  made  after  its  execution.  Burnham 
V.  Ay  re,  20  Law  Rep.  (10  x.  s.)  339.] 

■*  The  cases  on  this  subject  are  not  in 
perfect  harmf)ny  ;  but  they  are  under- 
stood fully  to  support  the  doctrine  in  the 
text.  They  all  agree,  that  wiiere  any 
suspicion  is  raised  as  to  the  genuineness 
of  an  altered  instrument,  whether  it  be 
apparent  upon  inspection,  or  made  so  by 
extraneous  evidence,  the  party  producing 
the  instrument,  and  claiming  under  it, 
is  bound  to  remove  the  suspicion  by  ac- 
counting for  the  alteration.  It  is  also 
generally  agreed,  that  inasmuch  as  fraud 
is  never  to  be  presumed,  therefore,  if  no 
particular  circumstances  of  suspicion  at- 
tach to  an  altered  instrument,  the  altera- 
tion is  to  be  presumed  iimocent,  or  made 
prior  to  its  execution.  Gooch  v,  Bryant, 
1  Shepl.  386  ;  Crabtreer.  Clark,  7  Shepl. 
337  ;  Wickes  v.  Caulk,  5  II.  &  J.  41 ;  Gil- 
let  y.  Sweat,  1  Gilm.  475;  Doe  v.  Cata- 
more, 15  Jur.  728 ;  5  Eng.  Law  «&  Eq. 
349  [and  cases  cited  in  note]  ;  Co.  Lit. 
225  6,  note  by  Butler  (Boothby  v. 
Stanley,  34  Maine,  115;  North  Kiver 
Meadow  Co.  ;;.  Shrewsbury  Church,  2 
N.  J.  421.  In  an  action  to  foreclose  a 
mortgage,  the  burden  of  proof  is  on  the 
plaintiff  to  show  that  tiie  interlineations, 
alterations,  and  erasures  therein  were 
made  before,  or  at  the  time  of,  its  execu- 


CHAP.  VI.] 


PEIVATE   WRITINGS. 


611 


§  565.   Same  subject     Tliougli  the  effect  of  the  alteration  of  a 
legal  instrument  is  generally  discussed  with  reference  to  deeds, 


tion,  and  there  is  no  presumption  that 
they  were  so  made,  or  that  they  were 
made  without  fraud.  Ely  v.  Ely,  19  Law 
Rep.  (9  N.  s.)  697.  See  also  Wilde  v. 
Armsby,  6  Cush.  314 ;  Acker  v.  Ledyard, 
8  Barb.  514;  Jordan  v.  Stewart,  23  Tenn. 
St  244;  Huntington  v.  Finch,  3  Ohio, 
N.  s.  445.]  In  Jackson  v.  Osborn,  2 
Wend.  555,  it  was  held,  that  the  party 
claiming  under  a  deed  was  bound  to 
account  for  the  alterations  in  it,  and 
that  no  presumption  was  to  be  made  in 
its  favor ;  but  in  Bailey  v.  Taylor,  11 
Conn.  531,  it  was  held,  that  nothing  was 
to  be  presumed  either  way,  but  the 
question  was  to  be  submitted  freely  to 
the  jury.  [There  is  no  presumption  of 
law  when  or  by  whom  an  alteration  is 
made.  These  are  questions  of  fact  for 
the  jury.  The  court  has  only  to  deter- 
mine whether  the  alteration  is  material. 
Milliken  r.  Martin,  66  III.  13.  If  the 
alteration  is  not  apparent  upon  the  face 
of  the  instrument,  it  is  for  the  party 
who  alleges  the  alteration  to  prove  it. 
Meike  v.  St.  Sav.  Inst.,  56  Ind.  355. 
Where  a  testator  gave  instructions  that 
his  will  should  be  prepared  with  blanks 
for  the  legacies,  and  the  will  was  found, 
after  his  death,  executed  with  the 
amounts  filled  in,  in  his  handwriting, 
this  was  presumed  to  have  been  done 
before  the  execution,  as  otherwise  the 
execution  would  have  been  nugatory. 
Birch  V.  Birch,  6  Ec.  &  Mar.  Cas.  581.] 

But  an  exception  to  this  rule  of  the 
presumption  of  innocence  seems  to  be 
admitted  in  the  case  of  negotiable  paper; 
it  having  been  held,  that  the  party  pro- 
ducing and  claiming  imder  the  paper  is 
bound  to  explain  every  apparent  and 
material  alteration,  the  operation  of 
which  would  be  in  his  own  favor. 
Knight  V.  Clements,  8  Ad.  &  El.  215; 
Clifford  V.  Parker,  2  M.  &  G.  909 ;  Simp- 
son V.  Stackhouse,  9  Barr,  186;  Mc- 
Mi'.ken  v.  Beauchamp,  2  Miller  (La.),  290. 
See  also  Henman  v.  Dickinson,  5  Bing. 
183;  Bishop  v.  Chambre,  3  C.  &  P.  55; 
Humphreys  v.  Guillow,  13  N.  H.  385; 
Hills  V.  Barnes,  11  N.  H.  395 ;  Taylor  v. 
Mosely,  6  C.  &  P.  273;  Whitfield  v. 
Collingwood,  1  Car.  &  Kir.  325;  Davis 
V.  Carlisle,  6  Ala.  707 ;  Walters  v.  Short, 

5  Gilm.  252  ;  Cariss  v.  Tattershall,  2  M. 

6  G.  890.  But  in  Davis  v.  Jenney,  1  Met. 
221,  it  was  held  that  the  burden  of  proof 
was  on  the  defendant.  Clark  v.  Eck- 
stein, 22  Penn.  St.  507;  Paine  v.  Ed- 
eell,  19  Id.  178.     [On  reference  to  Davis 


V.  Jenney,  the  point  does  not  seem  to 
have  been  decided  ;  and  so  it  appeared 
to  the  court,  which,  in  a  subsequent  case 
(Wilde  V.  Armsby,  6  Cush.  (Mass.)  314). 
held  to  the  contrary.] 

Another  exception  has  been  allowed, 
where  the  instrument  is,  by  the  rules  of 
practice,  to  be  received  as  genuhie,  unless 
its  genuineness  is  denied  on  oath  by  the 
party,  and  he  does  so ;  for  his  oath  is 
deemed  sufficient  to  destroy  the  presump- 
tion of  innocence  in  regard  to  the  altera- 
tion, and  to  place  the  instrument  in  the 
condition  of  a  suspected  paper.  Walters 
V.  Short,  5  Gilm.  252. 

It  is  also  clear,  that  it  is  for  the  court 
to  determine,  in  the  first  instance,  whether 
the  alteration  is  so  far  accounted  for,  as 
to  permit  the  instrument  to  be  read  in 
evidence  to  the  jury,  who  are  the  ulti- 
mate judges  of  the  tact.  Tillou  v.  The 
Clinton,  &c.  Ins.  Co.,  7  Barb.  564;  Ross 
V.  Gould,  5  Greenl.  204.  [But  see  Clark 
V.  Eckstein,  22  Penn.  St.  507.]  But 
whether,  in  the  absence  of  all  other  evi- 
dence, the  jury  may  determine  tire  time 
and  character  of  the  alteration  from  in- 
spection alone,  is  not  universally  agreed. 
In  some  cases  they  have  been  permitted 
to  do  so.  Bailey  v.  Taylor,  11  Conn. 
531  ;  Gooch  v.  Bryant,  1  Shepl.  386 ; 
Crabtree  v.  Clark,  7  Shepl.  337  ;  Doe  v. 
Catamore.  15  Jur.  728 ;  6  Eng.  Law  &  Eq. 
349 ;  Vanhorne  v.  Dorrance,  2  Dall.  306 
[Printup  V.  Mitchell,  17  Geo.  558].  And 
see  Wickes  v.  Caulk,  5  H.  &  J.  41 ;  Pid- 
len  V.  Shaw,  3  Dev.  238  ;  in  which  last 
case  it  was  held,  that  where  the  altera- 
tion was  apparently  against  the  interest 
of  the  holder  of  the  instrument,  it  should 
be  presumed  to  have  been  made  prior  to 
its  execution.  But  in  some  other  cases, 
the  courts  have  required  the  exiiibhion  of 
some  adminicular  proof,  being  of  opinion 
that  the  jury  ought  not  to  be  left  to  con- 
jecture alone,  upon  mere  inspection  of 
the  instrument.  See  Knight  v.  Clements, 
Clifford  V.  Parker,  and  Cariss  v.  Tatter- 
shall, supra. 

Other  cases,  in  accordance  with  the 
rules  above  stated,  are  the  following : 
Cumberland  Bank  v.  Hall,  1  Halst.  215  ; 
Sayre  v.  Reynolds,  2  South.  737  ;  Math- 
ews V.  Coalter,  5  Mo.  705  ;  Herrick  v. 
Malin,  22  Wend.  388;  iiarrington  v.  Bank 
of  Washington,  14  S.  &  R.  405 ;  Horry 
District  v.  Hanion,  1  N.  &  McC.  554; 
Haffelfinger  v.  Shutz,  16  S.  &  R.  44; 
Beaman  v.  Russell,  20  Vt.  205.  In  this 
last  case,  the  subject  of  alterations  is 


612 


LAW   OF  EVIDENCE. 


[part  in. 


yet  the  principle  is  applicable  to  all  other  instruments?-  The  early 
decisions  were  chiefly  upon  deeds,  because  almost  all  written  en- 
gagements were  anciently  in  that  form  ;  but  they  establish  the 
general  proposition,  that  written  instruments  which  are  altered, 
in  the  legal  sense  of  that  term,  as  hereafter  explained,  are  tlierehy 
made  void?  The  grounds  of  this  doctrine  are  twofold.  The  fii  5t 
is  that  of  public  policy,  to  prevent  fraud,  by  not  permitting  a  man 
to  take  the  chance  of  committing  a  fraud  without  running  any 
risk  of  losing  by  the  event  when  it  is  detected.^  The  other  is,  to 
insure  the  identity  of  the  instrument,  and  prevent  the  substitu- 
tion of  another  without  the  privity  of  the  party  concerned.*  The 
instrument  derives  its  legal  virtue  from  its  being  the  sole  reposi- 
tory of  the  agreement  of  the  parties,  solemnly  adopted  as  such, 
and  attested  by  the  signature  of  the  party  engaging  to  perform  it. 
Any  alteration,  therefore,  which  causes  it  to  speak  a  language 
different  in  legal  effect  from  that  which  it  originally  spake,  is  a 
material  alteration. 

§  566.  Alteration  and  spoliation.  A  distinction,  however,  is  to 
be  observed  between  the  alteration  and  the  spoliation  of  an  instru- 
ment as  to  the  legal  consequences.  An  alteration  is  an  act  done 
upon  the  instrument  by  which  its  meaning  or  language  is  changed. 
If  what  is  written  upon  or  erased  from  the  instrument  has  no  ten- 
dency to  produce  this  result,  or  to  mislead  any  person,  it  is  not 


very  fully  considered  and  the  authorities 
classed  and  examined  in  the  able  judg- 
ment delivered  by  Hall,  J.  Where  an 
alteration  is  apparent,  it  has  been  held, 
that  tlie  party  impeaching  the  instrument 
may  prove  collateral  facts  of  a  general 
character,  such  as  alterations  in  other 
notes,  which  formed  the  consideration  for 
the  note  in  question,  tending  to  show  that 
the  alteration  in  it  was  fraudulent.  Ran- 
kin u.  Blackwell,  2  Johns.  Cas.  198. 

1  [Entries  in  books  of  account  are 
not  instruments  within  the  meaning  of 
tlie  rule.  Adams  v.  Coullard,  102  Mass. 
1(J7.  An  entry  in  an  account-book,  after- 
wards altered,  is,  in  the  absence  of  ex- 
planation, to  be  presumed  to  be  in  accord- 
ance with  the  facts  at  the  time  of  entry. 
Shiels  V.  West,  17  Cal.  .'324.] 

:  Masters  /-.  Miller,  4  '1'.  U.  320,  330; 
Newell  V.  Mayberry,  3  Leigh,  250.  [A 
probate  bond  executed  by  a  principal 
and  two  sureties  was  altered  by  the  judge 
of  probate,  with  the  consent  of  the  prin- 
cipal, but  without  the  knowledge  of  the 
sureties,  by  increasing  the  penal  sum, 
and  was  then  executed  by  two  additional 


sureties  who  did  not  know  of  the  altera- 
tion, and  was  approved  by  the  judge  of 
probate  ;  and  it  was  held  that  the  bond, 
though  binding  on  the  jirincipal,  was  void 
as  to  all  the  sureties.  Howe  v.  Peabody, 
2  Gray,  55(3.  See  Taylor  v.  Johnson,  17 
Geo.  521;  Phillips  v.  Wells,  2  Snoed, 
154;  Ledford  v.  Vandyke,  Busbee,  Law, 
480  ;  Burchfield  o.  Moore,  25  Eng.  Law 
&  Eq.  123.  A  note  materially  altered 
in  its  amount,  or  otherwise,  is  thereby 
avoided  in  toio  as  a  security,  so  that  no 
action  can  be  maintained  upon  it,  even 
for  the  amount  promised  before  the 
alteration.  !Meyer  v.  Huncke,  55  N.  Y. 
412.] 

3  Masters  v.  Miller,  4  T.  R.  329,  per 
Ld.  Kenyon. 

•1  Sanderson  v.  Symonds,  1  B.  &  B. 
4.30,  per  Dallas,  C.  J.  It  is  on  this  ground 
that  the  alteration  of  a  deed,  in  an  imma- 
terial part,  is  sometimes  fatal,  where  its 
identity  is  put  in  issue  by  the  pleadings, 
every  part  of  the  writing  being  then  ma- 
terial to  the  identity.  See  supra,  §§  68, 
69 ;  Hunt  v.  Adams,  6  Mass.  621. 


CHAP.  VI.]  PRIVATE   WEITINGS.  613 

an  alteration.  The  term  is,  at  this  day,  usually  applied  to  the  act 
of  the  party  entitled  under  the  deed  or  instrument,  and  imports 
some  fraud  or  improper  design  on  his  part  to  change  its  effect. 
But  the  act  of  a  stranger,  without  the  participation  of  the  party 
interested,  is  a  mere  spoliation  or  mutilation  of  the  instrument, 
not  changing  its  legal  operation  so  long  as  the'  original  writing 
remaiiis  legible,  and,  if  it  be  a  deed,  any  trace  remains  of  the  seal. 
If,  by  the  unlawful  act  of  a  stranger,  the  instrument  is  mutilated 
or  defaced,  so  that  its  identity  is  gone,  the  law  regards  the  act,  so 
far  as  the  rights  of  the  parties  to  the  instrument  are  concerned, 
merely  as  an  accidental  destruction  of  primary  evidence,  com- 
pelli.  ig  a  resort  to  that  which  is  secondary ;  and,  in  such  case,  the 
mutilated  portion  may  be  admitted  as  secondary  evidence  of  so 
much  of  the  original"  instrument.  Thus,  if  it  be  a  deed,  and  the 
party  would  plead  it,  it  cannot  be  pleaded  with  a  profert,  but  the 
want  of  profert  must  be  excused  by  an  allegation  that  the  deed, 
meaning  its  legal  identity  as  a  deed,  has  been  accidentally,  and 
without  the  fault  of  the  party,  destroyed.^  And  whether  it  be  a 
deed  or  other  instrument,  its  original  tenor  must  be  substantially 
shown,  and  the  alteration  or  mutilation  accounted  for,  in  the  same 
manner  as  if  it  were  lost. 

§  567.  Immaterial  alterations.  In  considering  the  effect  of  alter- 
ations made  hy  the  party  himself^  who  holds  the  instrument,  a 
further  distinction  is  to  be  observed  between  the  insertion  of  those 
ivords  which  the  laiv  ivould  supply  and  those  of  a  different  char- 
acter.    If  the  law  would  have  supplied  the  words  which  were 

1  Powers  V.  "Ware,  2  Pick.  451  ;  Read  Nichols  v.  Johnson,  10  Conn.  192 ;  Mar- 
V.  Brookman.  3  T.  R.  152 ;  Morrill  v.  Otis,  shall  v.  Gougler,  10  S.  &  R.  164 ;  Palm. 
12  N.  H.  406.  The  necessity  of  some  403;  Wilkinson  r.  Johnson,  3  B.  &  C.  428; 
fraudulent  intent,  carried  home  to  the  Paper  v.  Birkbeck,  15  East,  17  [Boyd  v. 
party  claiming  under  the  instrument,  in  McConnell,  10  Humph.  68  ;  Lee  v.  Alex- 
order  to  render  the  alteration  fatal,  was  ander,  9  B.  Mon.  25].  The  old  doctrine, 
strongly  insisted  on  by  BuUer,  J.,  in  Mas-  that  every  material  alteration  of  a  deed, 
ters  V.  Miller,  4  T.  R.  334,  335.  And,  on  even  by  a  stranger,  and  without  privity 
this  ground,  at  least  tacitly  assumed,  the  of  either  party,  avoided  the  deed,  was 
old  cases,  to  the  effect  that  an  alteration  stronglycondemnedby  Stor^',  J.,in  United 
of  a  deed  by  a  stranger,  in  a  material  States  v.  Spalding,  supra,  as  repugnant 
part,  avoids  the  deed,  have  been  over-  to  common  sense  and  justice,  as  inflicting 
ruled.  In  tlie  following  cases,  the  altera-  on  an  innocent  party  all  the  losses  occa- 
tionofawriting.withoutfraudulentintent,  sioned  by  mistake,  by  accident,  by  tlie 
has  been  treated  as»^  merely  accidental  wrongful  acts  of  third  persons,  or  by  the 
spoliation.  Henfree  y.  Bromley,  6  East,  providence  of  Heaven ;  and  which  ouglit 
oU9;  Cutts,  in  error,  v.  United  States,  1  to  have  the  support  of  unbroken  author- 
Gall.  69 ;  United  States  v.  Spalding,  2  ity  before  a  court  of  law  was  bound  to 
Mason,  478 ;  Rees  v.  Overbaugh,  6  Cowen,  surrender  its  judgment  to  what  deserved 
746  ;  Lewis  v.  Payn,  8  Cowen,  71  ;  Jack-  no  better  name  than  a  technical  quibble, 
son  V.  Malin,  15  Johns.  297,  per  Piatt,  J. ;  [Goodfellow  v.  luslee,  1  Beasley,  355.J 


614  LAW   OF   EVIDENCE.  [PABT  HI. 

omitted,  and  were  afterwards  inserted  by  the  party,  it  has  been 
repeatedly  hekl,  that  even  his  own  insertion  of  them  will  not 
vitiate  the  instrument ;  for  the  assent  of  the  obligor  will,  in  such 
cases,  be  presumed.  It  is  not  an  alteration  in  the  sense  of  the 
law,  avoiding  the  instrument ;  although,  if  it  be  a  deed,  and  to 
be  set  forth  in  hoic  verba,  it  should  be  recited  as  it  was  originally 
written.^ 

§  568.  Same  subject.  It  has  been  strongly  doubted  whether  an 
immaterial  alteration  in  any  matter,  though  made  hy  the  obligee 
himself,  will  avoid  the  instrument,  provided  it  be  done  inno- 
cently, and  to  no  injurious  purpose.^  But  if  the  alteration  be 
fraudulently  made  by  the  party  claiming  under  the  instrument, 
it  does  not  seem  important  whether  it  be  in  a  material  or  an  im- 
material part ;  for,  in  either  case,  he  has  brought  himself  under 
the  operation  of  the  rule  established  for  the  prevention  of  fraud ; 
and,  having  fraudulently  destroyed  the  identity  of  the  instrument, 
he  must  take  the  peril  of  all  the  consequences.^  But  here,  also, 
a  further  distinction  is  to  be  observed  between  deeds  of  convey- 
ance and  covenants  ;  and  also  between  covenants  or  agreements 
executed  and  those  which  are  still  executory.  For  if  the  grantee 
of  land  alter  or  destroy  his  title-deed,  yet  liis  title  to  the  land  is 
not  gone.  It  passed  to  him  by  the  deed;  the  deed  has  performed 
its  office  as  an  instrument  of  conveyance,  and  its  continued  exist- 
ence is  not  necessary  to  the  continuance  of  title  in  the  grantee  ; 

1  Hunt  V.  Adams.  6  Mass.  519,  522  ;  v.  Moore,  25  Eng.  Law  &  Eq.  123.  See 
Waugh  V.  Bussell,  5  Taunt.  707  ;  Paget  v.  also  Warrington  v.  Early,  22  Id.  208]. 
Paget,  3  Chan.  Rep.  410;  Zoucli  v.  Clay,  ^  jf  an  obligee  procure  a  person,  who 
1  Ven'tr.  185 ;  Smith  v.  Crooker,  5  Mass.  was  not  present  at  tlie  execution  ot  the 
538;  Hale  v.  Russ,  1  Greenl.  334;  Knapp  bond,  to  sign  his  name  as  an  attesting 
V.  Maltby,  13  Wend.  587  ;  Brown  v.  witness,  this  is  prima  facie  evidence  of 
Pinkhara    18  Pick.  172.  fraud,  and  voids   the  bond.      Adams  v. 

2  Hatch  V.  Hatch,  9  Mass.  311,  per  Frye,  3  Met.  103.  But  it  is  competent 
Sewall,  J. ;  Smith  v.  Dunbar,  8  Pick.  246  for  the  obligee  to  rebut  the  inference  of 
[  Heed  y.  Kemp,  16111.445.  A  promissory  fraud,  by  proof  that  the  act  was  done 
note  was  made  payable  to  a  partnership  withoutany  fraudulent  purpose;  in  which 
under  one  name,  and  was  so  indorsed  by  case  tlie  b<md  will  not  be  thereby  ren- 
a  surety.  It  was  afterwards  altered  by  dered  void.  Ibid.  And  see  Homer  o. 
tlie  payee  and  maker,  without  the  knowl-  Wallis,  11  Mass.  309;  Smith  v  Dunham  8 
eib'e  of  the  surety,  so  as  to  be  payable  Pick.  246.  But  this  latter  point  was  de- 
to^the  same  partnership  by  a  different  cided  otherwise  in  Marshall  v.  Gougler, 
name.  In  an  action  on  the  note  by  the  10  S.  &  R.  164.  And  where  the  bolder  of 
payee  against  the  surety,  it  was  lield,  a  bond  or  a  note  under  seal  procured  a 
that  the"  alteration  was  "immaterial,  and  person  to  alter  the  date,  for  tiie  purpose 
that  it  did  not  affect  the  validity  of  the  of  correcting  a  mistake  in  the  year  and 
note  Arnold  v.  Jones,  2  R.  I.  345.  The  making  it  conform  to  the  truth,  this  was 
niakin"  a  note  payable  at  a  particular  held  to  avoid  the  bond.  Miller  v.  Gil- 
place  il  a  material  alteration.    Burchlield  leland,  S.  C.  Pa.,  1  Am.  Law  Reg.  672. 

Lowrie  and  Woodward,  JJ.,  uissentmg. 


CHAP,  VI.] 


PRIVATE   -WEITIKGS. 


615 


but  the  estate  remains  in  him  until  it  has  passed  to  another  by 
some  mode  of  conveyance  recognized  by  the  law.^  The  same 
principle  applies  to  contracts  executed  in  regard  to  the  acts  done 
under  them.  If  the  estate  lies  in  grant,  and  cannot  exist  without 
deed,  it  is  said  that  any  alteration  by  the  party  claiming  the  estate 
will  avoid  the  deed  as  to  him,  and  that  therefore  the  estate  itself, 
as  well  as  all  remedy  upon  the  deed,  will  be  utterly  gone.^  But 
whether  it  be  a  deed  conveying  real  estate  or  not,  it  seems  well 
settled  that  c^ny  alteration  in  the  instrument,  made  by  the  grantee 
or  obligee,  if  it  be  made  with  a  fraudulent  design,  and  do  not 
consist  in  the  insertion  of  words  which  the  law  would  supply,  is 
fatal  to  the  instrument,  as  the  foundation  of  any  remedy  at  law, 
upon  the  covenants  or  undertakings  contained  in  it.^  And,  in 
such  case,  it  seems  that  the  party  will  not  be  permitted  to  prove 
the  covenant  or  promise  by  other  evidence.^  But  where  there  are 
several  parties  to  an  indenture,  some  of  whom  have  executed  it, 
and  in  the  progress  of  the  transaction  it  is  altered  as  to  those  who 
have  not  signed  it,  without  the  knowledge  of  those  who  have,  but 
yet  in  a  part  not  at  all  affecting  the  latter,  and  then  is  executed 
by  the  residue,  it  is  good  as  to  all.^ 

§  568  a.  Alterations  by  consent.  In  all  these  cases  of  alterations, 
it  is  further  to  be  remarked,  that  they  are  supposed  to  have  been 
made  without  the  consent  of  the  other  party.     For,  if  the  altera- 


1  Hatch  V.  Hatch,  9  Mass.  307 ;  Dr. 
Leyfield's  case,  10  Co.  88  ;  Bolton  v.  Car- 
lisle, 2  H.  Bl.  359;  Davis  r.  Spooner,  3 
Pick.  '284;  Barrett  v.  Thorndike,  1  Greenl. 
73 ;  Lewis  v.  Payn,  8  Co  wen,  71 ;  Jackson 
V.  Gould,  7  Wend.  364;  Beckrow's  case, 
Hetl.  138  [Tibeau  v.  Tibeau,  19  Mo. 
78].  Whether  the  deed  may  still  be  read 
by  the  party,  as  evidence  of  title,  is  not 
agreed.  That  it  may  be  read,  see  Doe  v. 
Hirst,  3  Stark.  60;  Lewis  v.  Payn,  8 
Cowen,  17  ;  Jackson  v.  Gould,  7  Wend. 
364.  That  it  may  not,  see  Babb  v.  Clem- 
son,  10  S.  &  R.  419  ;  Withers  ".  Atkinson, 
1  Watts,  236  ;  Chesley  v.  Frost,  1  N.  H. 
145  ;  Newell  v.  Mavberry,  3  Leigh,  250  ; 
Bliss  V.  Mclntyre,  18  Vt.  466.  [An  altera- 
tion in  a  material  part  of  a  bond  given 
by  a  trustee  to  show  the  interest  of  a 
cestui  que  trust,  made  without  the  knowl- 
edge of  the  trustee,  by  a  party  bene- 
ficially interested  therein,  will  destroy 
the  bond,  but  will  not  operate  to  destroy 
an  estate  which  existed  before,  and  inde- 
pendently of,  the  bond.  Williams  v.  Van 
Tuyl,  2  Ohio,  n.  s.  336.] 


2  Moore  v.  Salter,  3  Bulstr.  79,  per 
Coke,  C.  J. ;  Lewis  v.  Payn,  8  Cowen, 
71 ;  supra,  §  265. 

3  Ibid. ;  Davidson  v.  Cooper,  11  M.  & 
W.  778  ;  Jackson  v.  Gould,  7  Wend.  364  ; 
Hatch  V.  Hatch,  9  Mass.  307  ;  Barrett 
V.  Thorndike,  1  Greenl.  73 ;  Withers  v. 
Atkinson,  1  Watts,  236 ;  Arrison  v.  Harm- 
stead,  2  Barr,  191 ;  Wliitmer  v.  Fr^ve,  10 
Mo.  348;  Mollett  v.  Wackerbarth,"5  M. 
Gr.  &  Sc.  181 ;  Agriculturist  Co.  v.  Fitz- 
gerald, 15  Jur.  489  ;  4  Eng.  L.  &  Eq.  211. 

*  .Martindale  v.  FoUett,  1  N.  H.  95; 
Newell  V.  Mavberry,  3  Leigh,  250  ;  Blade 
V.  Noland,  12  Wend.  173  ;  Arrison  v. 
Harinstead,  2  Barr,  191.  The  strictness 
of  the  English  rule,  that  every  alteration 
of  a  bill  of  exchange,  or  promissory  note, 
even  by  consent  of  the  parties,  renders 
it  utterly  void,  has  particular  reference  to 
the  stamp  act  of  1  Ann.  stat.  2,  c.  22; 
Chittv  on  Bills,  pp.  207-214. 

5  Doe  V.  Bingham.  4  B.  &  Aid.  672, 
675,  per  Bayley,  J.  ;  Hibblewhite  v.  Mc 
Morine,  6  M.  &  W.  208,  209. 


616 


LAW   OF   EVIDENCE. 


[part  nr. 


tion  is  made  ly  consent  of  parties^  such  as  by  filling  up  of  blanks, 
or  the  like,  it  is  valid.^  But  here,  also,  a  distinction  has  been 
taken  between  the  insertion  of  matter  essential  to  the  existence 
and  operation  of  the  instrument  as  a  deed,  and  that  which  is  not 
essential  to  its  operation.  Accordingly,  it  has  been  held  that  an 
instrument  which,  when  formally  executed,  was  deficient  in  some 
material  part,  so  as  to  be  incapable  of  any  operation  at  all,  and 
w\as  no  deed,  could  not  afterwards  become  a  deed  by  being  com- 
pleted and  delivered  by  a  stranger,  in  the  absence  of  the  party 
who  executed  it,  and  unauthorized  by  an  instrument  under  seal.^ 
Yet  this  rule,  again,  has  its  exceptions,  in  divers  cases,  such  as 
powers  of  attorney  to  ti-ansfer  stock,^  navy  bills,*  custom-house 
bonds,^  appeal  bonds,*^  bail  bonds,^  and  the  like,  which  have  been 
held  good,  though  executed  in  blank  and  afterwards  filled  up  by 
parol  authority  only.^ 


1  Markham  v.  Gonaston,  Cro.  EI.  626  ; 
Moor,  547  ;  Zouch  v.  Clay,  1  Ventr.  185; 
2  Lev.  35.  So,  where  a  power  of  attor- 
ney was  sent  to  B,  with  his  Christian 
name  in  bhmk,  which  lie  filled  by  insert- 
ing it,  this  was  held  valid.  Eagleton  v. 
Gutteridge,  11  M.  &  W.  468.  This  eon- 
sent  may  be  implied.  Hale  v.  Russ,  1 
Greenl.  34  ;  Smith  v.  Crocker,  5  Mass. 
6.38  ;  10  Johns.  300,  per  Kent,  C.  [Plank- 
Road  Co.  V.  Wetsel,  21  Barb.  56  ;  RatclifE 
V.  Planters'  Bank,  2  Sneed,  425  ;  Shelton 
V.  Deering,  10  B.  Mon.  405.  Where  the 
date  of  a  note  under  seal  was  altered  from 
1836  to  1838,  at  the  request  of  the  payee, 
and  in  the  presence  of  the  surety,  but 
without  his  assent,  tlie  note  was  avoided 
as  to  the  surety.  Miller  v.  Gilleland,  19 
Penn.  St.  110]. 

2  Ilibblewhite  v.  McMorine,  6  M.  & 
W.  200,  216. 

3  Conmiercial  Bank  of  Buffalo  v.  Kort- 
wright,  22  Wend.  348. 

*  Per  Wilson,  J.,  in  Masters  v.  Miller, 
1  Anstr.  229. 

5  22  Wend.  366. 

*  Ex  parte.  Decker,  6  Cowen,  59 ;  Ex 
parte  Kerwin,  8  Cowen,  118. 

^  Hale  V.  Russ,  1  Greenl.  334 ;  Gordon 
V.  Jeffreys,  2  Leigh,  410;  Vanhook  v. 
Barrett,  4  Dev.  Law,  272.  But  see  Har- 
rison V.  Tiernans,  1  Randolph,  177  ;  Gil- 
bert V.  Anthony,  1  Yerger,  60. 

8  In  Ti  xira  v.  Evans,  cited  1  Anstr. 
228,  when  one  executed  a  bond  in  blank, 
and  sent  it  into  tlie  money  market  to  raise 
H  loan  upon,  and  it  was  negotiated,  and 
filled  up  by  parol  authority  only.  Lord 
Mansfield  held  it  a  good  bond.     This  de- 


cision was  questioned  by  Mr.  Preston  in 
his  edition  of  Shep.  Touchst.  p.  68,  and  it 
was  expressly  overruled  in  Hibblewhite 
V.  McMorine,  6  M.  &  W.  215.  It  is  also 
contradicted  by  McKee  v.  Hicks,  2  Dev. 
Law,  379,  and  some  other  American  cases. 
But  it  was  confirmed  in  Wilev  i'-  Moor, 
17  S.  &  R.  438;  Knapp  v.  Maltby,  13 
Wend.  587  ;  Commercial  Bank  of  Buffalo 
V.  Kortwright,  22  Wend.  348  ;  Boardman 
V.  Gore,  1  Stewart  (Ala.),  517  ;  Duncan  v. 
Hodges,  4  McCord,  239  ;  and  in  several 
other  cases  the  same  doctrine  lias  been 
recognized.  In  the  United  States  v.  Nel- 
son, 2  Brockenbrough,  64,  74,  75,  which 
was  the  case  of  a  paymaster's  bond,  exe- 
cuted in  blank  and  afterwards  filled  up. 
Chief  Justice  Marsliall,  before  whom  it 
was  tried,  felt  bound,  by  the  weiglit  of 
authority,  to  decide  against  the  bond  ; 
but  expressed  his  opinion,  that  in  prin- 
ciple it  was  valid,  and  liis  belief  that  his 
judgment  would  be  reversed  in  the  Su- 
preme Court  of  the  United  States  ;  but 
the  cause  was  not  carried  farther.  In- 
struments executed  in  this  manner  have 
become  very  common,  and  the  autliori- 
ties  as  to  their  validity  are  distressingly 
in  conflict.  But  upon  the  principle 
adopted  in  Hudson  v.  Revet t,  5  Bing.  .308, 
there  is  very  little  difficulty  in  holding 
such  instruments  valid,  and  thus  giving 
full  effect  to  the  actual  intentions  of  ttie 
parties,  without  the  violation  of  any  rule 
of  law.  In  that  case,  the  defendant  exe- 
cuted and  delivered  a  deed,  conveying  his 
property  to  trustees,  to  sell  for  the  benefit 
of  his  creditors,  the  particulars  of  whose 
demands  were  stated  in  the  deed  ;  but  a 


CHAP.  TI.] 


PRIVATE  WRITINGS. 


617 


§  569.  Proof  by  subscribing  witnesses.  The  instrument,  being 
thus  produced  and  freed  from  suspicion,  must  be  proved  hy  the 
subscribing  witnesses^  if  there  be  any,  or  at  least  by  one  of  them.^ 


blank  was  left  for  one  of  the  principal 
debts,  the  exact  amount  of  which  was 
subsequently  ascertained  and  inserted  in 
the  deed,  in  the  grantor's  presence,  and 
with  his  assent,  by  the  attorney  who  iiad 
prepared  the  deed  and  liad  it  in  his  posses- 
sion, he  bein^  one  of  the  trustees.  The 
defendant  afterwards  recognized  the  deed 
as  valid,  in  various  transactions.  It  was 
held  that  the  deed  was  not  intended  to  be 
a  complete  and  perfect  deed,  until  all  the 
blanks  were  filled,  and  that  tlie  act  of 
tiie  grantor,  in  assenting  to  the  filling  of 
the  blank,  amounted  to  a  delivery  of  the 
deed,  thus  completed.  No  formality, 
either  of  words  or  action,  is  prescribed 
by  the  law  as  essential  to  delivery.  Nor 
is  it  material  how  or  when  the  deed  came 
into  the  hands  of  the  grantee.  Delivery, 
in  the  legal  sense,  consists  in  the  transfer 
of  the  possession  and  dominion ;  and 
whenever  the  grantor  assents  to  tlie  pos- 
session of  the  deed  by  the  grantee,  as  an 
instrument  of  title,  then,  and  not  until 
then,  the  delivery  is  complete.  The  pos- 
session of  the  instrument  by  the  grantee 
may  be  simultaneous  witli  this  act  of  the 
grantor's  mind,  or  it  may  have  been  long 
before ;  but  it  is  this  assent  of  the  grantor 
which  changes  the  character  of  that  prior 
possession,  and  imparts  validity  to  the 
deed.  Mr.  Preston  observes  that  "  all 
cases  of  this  sort  depend  on  the  inquiry 
whether  the  intended  grantor  has  given 
sanction  to  the  instrument,  so  as  to  make 
it  conclusively  his  deed."  8  Preston  on 
Abstracts,  p.  64.  And  see  Parker  v.  Hill, 
8  Met.  447  ;  Hope  v.  Harnian,  11  Jur. 
1097  ;  post,  vol.  ii.  §  297.  The  same 
effect  was  given  to  clear  and  unequivocal 
acts  of  assent  en  pais,  by  a  feme  mort- 
gagor, after  the  death  of  her  husband, 
as  amounting  to  a  redelivery  of  a  deed 
of  mortgage,  executed  by  her  while 
a  feme  covert.  Giiodright  i\  Straphan, 
Cowp.  201,  204  :  Shep.  Touchst.  by  Pres- 
ton, p.  58.  "  The  general  rule,"  said  Mr. 
Justice  Johnson,  in  delivering  the  judg- 
ment of  the  court,  in  Duncan  v.  Hodges, 
"  is,  that  if  a  blank  be  signed,  sealed, 
and  delivered,  and  afterwards  written,  it 
is  no  deed  ;  and  the  obvious  reason  is, 
that  as  there  was  nothing  of  substance 
contained  in  it,  nothing  could  pass  by  it. 
But  the  rule  was  never  intended  to  pre- 
scribe to  the  grantor  the  order  of  time, 
in  which  the  several  parts  of  a  deed 
should  be  written.    A  thing  to  be  granted, 


a  person  to  whom,  and  the  sealing  and 
delivery,  are  some  of  those  which  are 
necessary,  and  the  whole  is  consummated 
by  the  delivery  ;  and  if  the  grantor 
should  think  proper  to  reverse  this  order, 
in  the  manner  of  execution,  but  in  the 
end  makes  it  perfect  before  delivery,  it 
is  a  good  deed.  See  4  McCord,  289,  240. 
Whenever,  therefore,  a  deed  is  materially 
altered,  by  consent  of  the  parties,  after 
its  formal  execution,  the  grantor  or  ob- 
ligor assents  that  the  grantee  or  obligee 
shall  retain  it  in  its  altered  and  com- 
pleted form,  as  an  instrument  of  title  ; 
and  this  assent  amounts  to  a  delivery  or 
redelivery,  as  the  case  may  require,  and 
warrants  the  jury  in  finding  accordingly. 
Such  plainly  was  the  opinion  of  the 
learned  judges  in  Hudson  )•.  Kevett,  a3 
stated  by  Best,  C  J.,  in  5  Bing.  388,  389; 
and  further  expounded  in  West  v.  Stew- 
ard, 14  M.  &  W.  47.  See  also  Hartley  v. 
Manson,  4  M.  &  G.  172  ;  Story  on  Bail- 
ments, §  55.  [Filling  in  the  date  of  a 
warrant  of  attorney  after  execution  is 
not  such  an  alteration  as  will  avoid  the 
instrument.  Keane  v.  Smallbone,  33  Eng. 
Law  &  Eq.  198.] 

1  A  written  instrument,  not  attested 
by  a  subscribing  witness,  is  sufficiently 
proved  to  authorize  its  introduction,  by 
competent  proof  that  the  signature  of  the 
person,  whose  name  is  undersigned,  is 
genuine.  The  party  producing  it  is  not 
required  to  proceed  further  upon  a  mere 
suggestion  of  a  false  date  when  tliere  are 
no  indications  of  falsity  found  upon  the 
paper,  and  prove,  that  it  was  actually 
made  on  the  day  of  the  date.  After 
proof  that  the  signature  is  genuine,  tlie 
law  presumes  that  the  instrument  in  all 
its  parts  is  genuine  also,  when  there  are 
no  indications  to  be  found  upon  it  to 
rebut  such  a  presumption.  See  PuUen 
V.  Hutchinson,  12  Shepl.  254,  per  Shep- 
ley,  J. 

In  regard  to  instruments  duly  attested, 
the  rule  in  the  text  is  applied  where  the  in- 
strument is  the  foundation  of  the  party's 
claim,  or  he  is  privy  to  it,  or  where  it  pur- 
ports to  be  executed  by  his  adversary ; 
but  not  where  it  is  wholly  inter  alios,  un- 
der whom  neither  party  can  claim  or 
deduce  any  right,  title,  or  interest  to  him- 
self. Ayres  v.  Hewett,  1  Applet.  286,  per 
Whitman,  C  J. 

In  Missouri,  tico  witnesses  are  required 
to  prove  the  signature  of  a  deceased  sub- 


618 


LAW   OF   EVIDENCE. 


[PAE-T  III. 


Various  reasons  have  been  assigned  for  tins  rule  ;  but  that  upon 
which  it  seems  best  founded  is,  that  a  fact  may  be  known  to  the 
subscribing  witness  not  within  the  knowledge  or  recollection  of 
the  obligor,  and  that  he  is  entitled  to  avail  himself  of  all  the 
knowledge  of  the  subscribing  witness  relative  to  the  transaction. ^ 
The  part}',  to  whose  execution  he  is  a  witness,  is  considered  as 
invoking  him,  as  the  person  to  whom  he  refers,  to  prove  what 
papscd  at  the  time  of  attestation.^  The  rule,  though  originally 
framed  in  regard  to  deeds,  is  now  extended  to  every  species  of 
writing  attested  by  a  witness.^  Such  being  the  principle  of  the 
rule,  its  application  has  been  held  indispensable,  even  where  it 


scribing  witness   to  a  deed.     Rev.  Stat. 
1845,  c.  32,  §  22.     See  supra,  §  2U0,  n. 

In  Virqinia,  every  written  instrument 
is  presumed  to  be  genuine,  if  the  party 
purporting  to  have  signed  it  be  living, 
unless  he  will  denv  the  signature,  on 
oath.  Rev.  Stat.  1849,  c.  98,  §  85.  So,  in 
Illinois.  Linn  v.  Buckingliam,  1  Scam. 
451.  And  see  Missouri,  Rev.  Stat.  1835, 
p.  463,  §§  18  19 ;  Texas,  Hartley's  Dig. 
§  741  ;  Delaware,  Rev.  Stat.  1852,  c. 
106,  §  5. 

In  South  Carolina,  the  signature  to  a 
bond  or  note  may  be  proved  by  any  other 
person,  without  calling  the  subscribing 
witness  ;  unless  the  defendant  will  swear 
that  it  is  not  his  signature,  or  that  of  his 
testator  or  intestate,  if  the  case  be  such. 
Stat,  at  Large,  vol.  v.  p.  434.  And  for- 
eign deeds,  bonds,  &.C.,  attested  to  have 
been  proved  on  oath  before  a  notary  or 
other  magistrate  qualified  therefor,  are 
admissible  in  evidence  without  proof  by 
the  subscribing  witnesses;  provided  the 
courts  of  the  foreign  State  receive  similar 
'  evidence  from  this  State.  Id.  vol.  iii.  p. 
285  ;  vol.  V.  p.  45. 

In  Virginia,  foreign  deeds  or  powers 
of  attorney,  &c.,  duly  acknowledged,  so 
as  to  be  admitted  to  record  by  the  laws 
of  that  State ;  also,  policies,  charter- 
parties,  and  copies  of  record  or  of  regis- 
ters of  marriages  and  births,  attested  by 
a  notary,  to  be  made,  entered,  or  kept 
according  to  tlie  law  of  the  place,  are 
admissible  in  evidence  in  the  courts  of 
that  State,  without  further  proof.  Rev. 
Stat.  1849,  c.  121,  §  ;3 ;  Id.  c.  176,  §  16. 
A  similar  rule,  in  substance,  is  enacted  in 
Mississippi.  Hutchinson's  Dig.  c.  60, 
art.  2.  And  see  infra,  §  573,  n.  [And 
where  tlie  instrument  which  the  plaintiff 
offered  as  part  of  his  case  was  a  lease  not 
under  seal,  executed  on  the  part  of  the 
lessor  by  an  attorney,  in  tiie  presence  of 
an  attesting  witness,  it  was  held,  that  the 


testimony  of  the  attorney  was  inadmis- 
sible to  prove  the  execution  of  thelense, 
without  first  calling  the  attesting  witness, 
or  accounting  for  his  absence.  "  Tlie  per- 
son whose  signature  appeared  to  it  as  at- 
torney of  the  supposed  lessor  could  not 
affect  the  rights  of  the  defendants,  who 
objected  to  it,  by  way  of  admission  or  con- 
fession, for  he  never  represented,  or  was 
intrusted  by,  the  defendants  for  any  pur- 
pose. His  handwriting  was  secondary 
evidence  only,  and  could  not  be  proved 
until  the  plaintiff  had  proved  that  the 
testimony  of  the  attesting  witness  could 
not  be  obtained.  The  attorney,  therefore, 
stood  in  the  same  position  as  any  other 
person  not  a  subscribing  witness,  who 
might  have  happened  to  be  present  at  the 
execution  of  the  instrument.  The  evi- 
dence was  incompetent,  and  rightly  re- 
jected." By  Shaw,  C.  J.,  Barry  v.  Ryan, 
4  Gray,  523,  525.  Where  one  witness 
testifies  that  tlie  other  witness  and  him- 
self were  present  and  saw  the  execution 
of  a  deed,  it  is  not  necessary  to  call  such 
other  witness.  Melcher  v.  Flanders,  40 
N.  H.  139.  Names  of  persons  not  parties 
to  the  deed,  in  the  usual  place  for  sub- 
scribing witnesses,  though  not  said  to  be 
witnesses,  will  be  presumed  to  be  such. 
Chaplin  v.  Briscoe,  19  Miss.  372.] 

1  Per  Le  Blanc,  J.,  in  Call  v.  Dunning, 
4  East,  54  ;  Manners  v.  Postan,  4  Esp. 
240,  per  Ld.  Alvanley,  C.  J. ;  3  Preston 
on  Abstracts  of  Title,  p.  73. 

2  Cussons  V.  Skinner,  11  M.  &  W.  168, 
per  Ld.  Abinger ;  HoUenback  v.  Fleming, 
6  Hill  (N.  Y.),  303. 

3  Doe  V.  Durnford,  2  M.  &  S.  G2, 
which  was  a  notice  to  quit.  So,  of  a  war- 
rant to  distrain.  Higgs  v.  Dixon,  2  Stark. 
180.  A  receipt.  Heckert  v.  Haine,  6 
Binn.  1(5;  Wishart  v.  Downey,  15  S.  & 
R.  77 ;  Mahan  v.  McGrady,  6  S.  &  R. 
314. 


CHAP.  VI.] 


PRIVATE    WRITINGS. 


619 


was  proved  that  the  obligor  had  admitted  that  he  had  executed 
the  bond,^  and  though  the  admission  were  made  in  answer  to  a 
bill  of  discovery.- 

§  569  a.  Who  is  subscribing  witness.  A  subscribing  witness  is 
one  who  was  present  when  the  instrument  was  executed,  and 
who,  at  that  time,  at  the  request  or  with  the  assent  of  the  party, 
subscribed  his  name  to  it  as  a  witness  of  the  execution.  If  his 
name  is  signed,  not  by  himself  but  by  the  party,  it  is  no  attesta- 
tion. Neither  is  it  such  if,  though  present  at  the  execution,  he 
did  not  subscribe  the  instrument  at  that  time,  but  did  it  after- 
wards, and  without  request,  or  by  the  fraudulent  procurement  o\ 
the  other  party.  But  it  is  not  necessary  that  he  should  have  actu- 
ally seen  the  party  sign,  or  have  been  present  at  the  very  moment 
of  signing  ;  for  if  he  is  called  in  immediately  afterwards,  and  the 
party  acknowledges  his  signature  to  the  witness,  and  requests  him 
to  attest  it,  tliis  will  be  deemed  part  of  the  transaction,  and  there- 
fore a  sufficient  attestation .^ 

§  570.  Ancient  instruments  prove  themselves.  To  this  rule,  re- 
quiring the  production  of  the  subscribing  witnesses,  there  are 
several  classes  of  exceptions.  The  first  is,  where  the  instrument 
is  thirty  years  old  ;  in  which  case,  as  we  have  heretofore  seen,^  it 


1  Abbott  V.  Pliimbe,  1  Doug.  216,  re- 
ferred to  by  Lawrence,  J.,  in  7  T.  R.  267, 
and  ajjain  in  2  East,  187 ;  and  confirmed  by 
Lord  Ellenborough,  as  an  inexorable  rule, 
in  Rex  v.  Harringworth,  4  M.  &  S.  353 
[Story  V.  Lovett,  1  E.  D.  Smith,  153.  And 
the  fact  tliat  such  witness  is  the  sole 
justice  of  the  court  will  not  dispense  with 
it.  Jones  v.  Phelps,  5  Mich.  218].  The 
admission  of  the  party  may  be  given  in 
evidence ;  but  the  witness  must  also  be 
produced,  if  to  be  had.  Tiiis  rule  was 
broken  in  upon,  in  tlie  case  of  the  admit- 
ted execution  of  a  promissory  note,  in 
Hall  V.  Phelps,  2  Johns.  451 ;  but  the  rule 
was  afterwards  recognized  as  binding  in 
the  case  of  a  deed,  in  Fox  v.  Reil,  3 
Johns.  477,  and  confirmed  in  Henry  v. 
Bishop,  2  Wend.  575. 

2  Call  I'.  Dunning,  4  East,  4-3.  But 
see  Bowles  v.  Langworthy,  5  T.  R.  306. 
So,  in  order  to  prove  the  admission  of 
a  debt,  by  the  medium  of  an  entry  in  a 
scliedule  filed  by  the  defendant  in  the 
Insolvent  Debtors'  Court,  it  was  held 
nei'essary  to  prove  his  signature  by  the 
attesting  witness,  although  the  document 
had  been  acted  upon  by  that  court. 
Streeter  v.  Bartlett,  5  M.  G.  &  Sc.  562. 


In  Marijland,  the  rule  in  the  text  is  abro- 
gated by  the  statute  of  1825,  c.  120. 
[Tlie  English  statute,  rendering  parties 
to  suits  competent  witnesses,  has  not 
changed  tlie  rule.  Whyman  v.  Garth,  20 
Eng.  Law  &  Eq.  359.  And  the  same  has 
been  held  in  Massachusetts.  Brigham  v. 
Palmer,  3  Allen,  450.] 

3  Hollenback  v.  Fleming,  6  Hill  (N.  Y.), 
303;  Cussons  v.  Skinner,  11  M.  &  W. 
168  ;  Ledgard  v.  Thompson,  Id.  41,  per 
Parke,  B.  "  Si  [testes]  in  confectione 
chartae  pr^esentes  non  fuerint,  sufficit  si 
postmodum,  in  prajsentia  donatoris  et 
donatorii  fuerint  recitate  et  concessa." 
Bracton,  b.  2,  c.  16,  §  12,  fol.  38,  a  ;  Fleta, 
1.  3,  c.  14,  §  13,  p.  200.  And  see  Brackett 
V.  Mountfort,  2  Fairf.  115.  See  further, 
on  signature  and  attestation,  post,  vol.  ii. 
tit.  Wills,  §§  674,  676,  678. 

*  Supra,  §  21,  and  cases  there  cited. 
See  also  Doe  v.  Davis,  10  Ad.  &  El.  n.  s. 
314;  Crane  v.  Marshall,  4  Shepl.  27; 
Green  v.  Chelsea,  24  Pick.  71.  From  the 
dictum  of  Parker,  C.  J.,  in  Emerson  v. 
Tolman,  4  Pick.  162,  it  has  been  inferred 
tliat  the  subscribing  witnesses  must  be 
produced,  if  living,  though  the  deed  be 
more  than  thirty  years  old.    But  the  case 


620 


LAW   OF  EVIDENCE. 


[part  m. 


is  said  to  prove  itself,  the  subscribing  witnesses  being  presumed 
to  be  dead,  and  other  proof  being  presumed  to  be  beyond  the 
reach  of  the  party.  But  such  documents  must  be  free  from  just 
grounds  of  suspicion,  and  must  come  from  the  proper  custody,^  or 
have  been  acted  upon,  so  as  to  afford  some  corroborative  proof  of 
their  genuineness.^  And,  in  this  case,  it  is  not  necessary  to  call 
the  f-ubscribing  witnesses,  though  they  be  living.^  This  excep- 
tion is  coextensive  with  the  rule  applying  to  ancient  writings  of 
every  description,  provided  they  have  been  brought  from  the 
proper  custody  and  place  ;  for  the  finding  them  in  such  a  custody 
and  place  is  a  presumption  that  they  were  honestly  and  fairly 
obtained  and  preserved  for  use,  and  are  free  from  suspicion  of 
dishonesty.^  But  whether  it  extends  to  the  seal  of  a  private  cor- 
poration has  been  doubted,  for  such  a  case  does  not  seem  clearly 
to  be  within  the  principle  of  the  exception.^ 

§  571.  Witness  not  required  -when  the  instrument  is  produced  by- 
adverse  party.  A  Second  exception  to  this  rule  is  allowed  where 
the  instrument  is  produced  hy  the  adverse  party,  pursuant  to  notice, 


of  Jackson  v.  Blansban,  3  Johns.  292, 
which  is  there  referred  to,  contains  no 
such  doctrine.  The  question  in  tlie  latter 
case,  which  was  tlie  ca-^o  of  a  will,  was, 
whether  the  thirty  years  should  be  com- 
puted from  the  date  of  tlie  will,  or  from 
the  time  of  the  testator's  death  ;  and  the 
court  held,  that  it  should  be  computed 
from  the  time  of  his  death.  But  on  this 
point  Spencer,  J.,  differed  from  the  rest  of 
the  court ;  and  his  opinion,  which  seems 
more  consistent  with  tlie  principle  of  the 
rule,  isfuUv  sustained  by  Doe  v.  Deakin, 
3  C.  &  P.  402 ;  Doe  v.  Wolley,  8  B.  &  C. 
22  ;  McKenire  v.  Frazer,  9  Ves.  5  ;  Gough 
V.  Gough,  4  T.  R.  r07,  n.  See  Adams  on 
Eject,  p.  260.  And  it  was  accordingly  so 
decided  in  Man  v.  Ricketts,  7  Beavan,  93. 

i  Supra,  §  \42.  And  see  Slater  v. 
Hodgson,  9  Ad.  &  El.  x.  s.  727.  [An  an- 
cient book  kept  among  the  records  of  the 
town  and  coming  therefrom,  purporting  to 
be  the  selectmen's  book  of  accounts,  with 
the  treasury  of  the  town,  is  admissible  in 
evidence  of  the  facts  therein  stated.  Bos- 
ton V.  Weymouth,  4  Gush.  538,542.  See 
also  Wliitehouse  v.  Bickford,  9  Foster, 
471 ;  Adams  v.  Stanyan,  4  Foster,  405  ] 

'^  See  .s^yirfT,  §§21,  142,  and  cases  there 
cited;  Doe  d.  Edgett  v.  Stiles,  1  Kerr 
(New  Br.),  3.')8.  Mr.  Evans  thinks  that 
the  antiquity  of  the  deed  is  alone  sutK- 
cient  to  entitle  it  to  be  read;  and  that 
tl>«  other  circumstances  only  go  to  its 


effect  in  evidence.  2  Poth.  Obi.  App. 
xvi.  §  5,  p.  149.  See  also  Doe  v.  Burdett, 
4  Ad.  &  El.  1,  19  ;  Brett  v.  Beales,  1  M.  & 
Malk.  416,  418  ;  Jackson  ;;.  Larroway,  3 
Johns.  Cas.  283.  In  some  cases  proof  of 
possession,  under  the  deed,  or  will,  seems 
to  have  been  deemed  indispensable  ;  but 
the  principle  prevading  them  all  is  that  of 
corroboration  merely  ;  that  is,  that  some 
evidence  shall  be  offered,  au.xiliary  to  the 
apparent  antiquity  of  the  instrument,  to 
raise  a  sufficient  presumption  in  its  favor. 
As  to  this  point,  see  supra,  §  144,  n.  [A 
deed,  though  over  thirtj-  years  old,  can- 
not be  admitted  as  an  ancient  deed,  when 
purporting  to  have  been  executed  by  one 
acting  in  a  fiduciary  capacity,  in  the  ab- 
sence of  proof  of  his  authority  to  make 
the  deed.     Fell  v.  Young,  63  111.  106.] 

8  Marsh  v.  Colnett,  2  Esp.  (365  ;  Doe  v. 
Burdett,  4  Ad.&El.  1, 19  ;  Doe  r.  Deakin, 
3  C.  &  P.  402 ;  Jackson  v.  Christman,  4 
Wend.  277,  282,  283  ;  Doe  v.  Wolley,  8 
B.  &  G.  22;  Fetherley  v.  Waggoner,  11 
Wend.  (303  ;  supra,  §  142. 

*  12  Vin.  Abr.  tit.  Evidence,  A,  b,  5, 
pi.  7,  cited  by  Ld.  Elleuborougli,  in  Roe 
V.  Rawlins,  7 East,  291  ;  Gov.,  &c.  of  Chel- 
sea Waterworks  v.  Gowper,  1  Esp.  275; 
Forbes  ;;.  Wale,  1  W.  Bl.  532 ;  Winne  i;. 
Tyrwhitt,  4  B.  &  Aid.  376. 

6  Hex  V.  Bathwick,  2  B.  &  Ad.  639, 
048. 


CHAP.  VI.] 


PEIVATE   WRITINGS. 


621 


the  party  producing  it  claimmg  an  interest  under  the  instrument. 
In  this  case,  the  party  producing  the  instrument  is  not  permitted 
to  call  on  the  other  for  proof  of  its  execution ;  for,  by  claiming 
an  interest  under  the  instrument,  he  has  admitted  its  execution. i 
The  same  principle  is  apjjlied  where  both  parties  claim  similar 
interests  under  the  same  deed  ;  in  which  case,  the  fact  of  such 
claim  may  be  shown  by  parol.^  So,  where  both  parties  claim 
under  tlie  same  ancestor,  his  title-deed,  being  equally  presumable 
to  be  in  the  possession  of  either,  may  be  proved  by  a  copy  from 
the  registry .3  But  it  seems  that  the  interest  claimed  in  these 
cases  must  be  of  an  abiding  nature.  Therefore,  where  the  defend- 
ant would  show  that  he  was  a  partner  with  the  plaintiff,  and,  in 
proof  thereof,  called  on  the  plaintiff  to  produce  a  written  personal 
contract,  made  between  them  both,  as  partners  of  the  one  part, 
and  a  third  person  of  the  other  part,  for  labor  which  had  been 
performed,  which  was  produced  accordingly,  the  defendant  was 
still  held  bound  to  prove  its  execution.*  The  interest,  also,  which 
is  claimed  under  the  instrument  produced  on  notice,  must,  in 
order  to  dispense  with  this  rule,  be  an  interest  claimed  in  the  same 
cause.  Therefore,  where,  in  an  action  by  an  agent  against  his 
principal  for  his  commission  due  for  procuring  him  an  apprentice, 
the  indenture  of  apprenticeship  was  produced  by  the  defendant 


1  Pearce  v.  Hooper,  .3  Taunt.  (30  ;  Carr 
V.  Burdiss,  1  C.  M.  &  R.  784,  785 ;  Orr  v. 
Morice,  3  Br.  &  Biiig.  130 ;  Bradshaw  v. 
Bennett,  1  M.  &  Rob.  143.  In  assumpsit 
by  a  servant  against  his  master,  for  breach 
of  a  written  contract  of  service,  the  agree- 
ment being  produced  under  notice,  proof 
of  it  by  the  attesting  witness  was  held  un- 
necessary. Bell  V.  Chaytor,  1  Car.  & 
Kirw.  162  ;  5  C.  &  P.  48. 

2  Doe  V.  Wilkins,  4  Ad.  &E1.  86  ;  s.  c. 
5  Nev.  &  M.  434;  Knight  v.  Martin,  1 
Gow,  26. 

3  Burghardt  v.  Turner,  12  Pick.  534. 
It  being  the  general  practice,  in  the  United 
States,  for  the  grantor  to  retain  his  own 
title-deeds,  instead  of  delivering  them 
over  to  tlie  grantee,  the  grantee  is  not  held 
boimd  to  produce  them ;  but  tlie  person 
making  title  to  lands  is,  in  general,  per- 
mitted to  read  certified  copies,  from  the 
registry,  of  all  deeds  and  instruments  un- 
der which  he  claims,  and  to  wliich  he  is 
not  himself  a  party,  and  of  which  he  is 
not  supposed  to  have  the  control.  Scanlan 
V.  Wright,  13  Pick.  523  ;  Woodman  v. 
Coolbroth,  7  Greenl.  181 ;  Loomis  v. 
Bedel,  11  N.  H.  74.     And  where  a  copy 


is,  on  this  ground,  admissible,  it  has  been 
held  that  the  original  might  be  read  in 
evidence,  without  proof  of  its  formal  exe- 
cution. Knox  V.  Silloway,  1  Fairf.  201. 
This  practice,  however,  hasbeen  restricted 
to  instruments  which  are  by  law  required 
to  be  registered,  and  to  transmissions  of 
title  inter  vivos;  for  if  the  party  claims 
by  descent  from  a  grantee,  it  has  been 
held  that  he  must  produce  the  deed  to 
his  ancestor,  in  the  same  manner  as  the 
ancestor  himself  would  be  obliged  to 
do.  Kelsey  v.  Hamner,  18  Conn.  311. 
Where  proof  of  title  had  been  made  by  a 
copy  from  the  registry  of  an  officer's  levy 
of  an  execution,  and  the  adverse  party 
thereupon  produced  the  original  return, 
in  which  were  material  alterations,  it  was 
held  that  this  did  not  affect  the  admissi- 
bility of  the  copy  in  evidence,  and  that  the 
burden  of  explaining  and  accounting  for 
the  alterations  in  the  original  did  not  rest 
on  the  party  producing  the  copy.  Wilbur 
V.  Wilbur,  13  Met.  405  [ante,  §  561,  and 
notes]. 

4  Collins  V.  Bayntum,  1  Ad.  &  El.  n.  s 
117. 


622 


LAW   OF  EVIDENCE. 


[pAUT  in. 


on  notice,  it  was  held  that  the  plaintiff  was  still  bound  to  prove 
its  execution  by  the  subscribing  witness  ;  and  that,  having  been 
nonsuited  for  want  of  this  evidence,  he  was  not  entitled  to  a  new 
trial  on  the  ground  of  surprise,  though  he  was  not  previously 
aware  that  there  was  a  subscribing  witness,  it  not  appearing  that 
lie  had  made  any  inquiry  on  the  subject  ^  So,  where  the  instru- 
ment was  taken  by  the  party  producing  it,  in  the  course  of  his 
official  duty,  as,  for  example,  a  bail  bond,  taken  by  the  sheriff, 
and  produced  by  him  on  notice,  its  due  execution  will  prima  facie 
be  presumed.2  Subject  to  these  exceptions,  the  general  rule  is, 
that  where  the  party  producing  an  instrument  on  notice  is  not 
a  party  to  it,  and  claims  no  beneficial  interest  under  it,  the  party 
calling  for  its  production  and  offering  it  in  evidence  must  prove 
its  execution.^ 

§  572.  When  witness  cannot  be  found,  or  is  incapable.  A  tJiird 
class  of  exceptions  to  this  rule  arises  from  the  circumstances  of 
the  witnesses  themselves,  the  party,  either  from  p)^ysical  or  legal 
obstacles^  being  unable  to  adduce  them.  Thus,  if  the  witness  is 
proved  or  presumed  to  be  dead ;  *  or  cannot  be  found  after  dili- 
gent inquiry  ;  ^  or,  is  resident  beyond  the  sea  ;  ^  or,  is  out  of  the 
jurisdiction  of  the  court ;  "^  or,  is  a  fictitious  person,  whose  name 
has  been  placed  upon  the  deed  by  the  party  who  made  it ;  ^  or,  if 


1  Rearden  v.  Minter,  5  M.  &  Gr.  204. 

'^  Scott  V.  Waitliman,  3  Stark.  168. 

3  Betts  V.  Badger,  12  Johns.  223  ;  Jack- 
son V.  Kingsley,  17  Johns.  158. 

*  Anon.,  12  Mod.  607 ;  Barnes  v.  Trom- 
powsky,  7  T.  R.  265;  Adams  v.  Kerr,  1 
B.  &  P.  360 ;  Banks  v.  Farquharson,  1 
Dick.  167  ;  Mott  v.  Doughty,  1  Johns. 
Cas.  2.30 ;  Dudley  v.  Sumner,  5  Mass.  463. 
That  the  witness  is  sick,  even  though  de- 
spaired of,  is  not  sufficient.  Harrison  v. 
Blades,  3  Campb.  457.  [If  a  subscribing 
witness  to  an  instrument  merely  makes 
his  mark,  instead  of  writing  his  name,  the 
instrument  is  to  be  proved  by  evidence  of 
the  handwriting  of  the  party  executing 
it.  Watts  V.  Kilburn,  7  Geo.  356.  But 
the  genuineness  of  the  mark  may  be 
proved  by  persons  who  have  seen  it  made 
on  other  occasions.  George  v.  Surrey,  1 
M.  &  M.  516  ]     See  also  supra,  §  272,  n. 

6  Coghlan  v.  Williamson,  1  Doug.  93; 
Cunliffe  v.  Sefton,  2  East,  183 ;  Call  v. 
Dunning,  5  Esp.  16  ;  4  East,  53  ;  Crosby 
V.  Piercy,  1  Taunt.  364  ;  Jones  v.  Brink- 
ley,  1  Hayw.  20;  Anon.,  12  Mod.  607; 
Warden  v.  Fermor,  2  Campb.  282;  Jack- 
son  V.   Burton,    11   Johns.  64;   Mills    v. 


Twist,  8  Johns.  121 ;  Parker  v.  Haskins,  2 
Taunt.  223;  Whittemore  v.  Brooks,  1 
Greenl.  57  ;  Burt  v.  Walker,  4  B.  &  Aid. 
697  ;  Pytt  v.  Griffith,  6  Moore,  538;  Aus- 
tin V.  Rumsey,  2  C.  &  K.  736. 

6  Anon.,  12  Mod.  607  ;  Barnes  v.  Trora- 
powsky,  7  T.  R.  266. 

7  Holmes  v.  Pontin,  Peake's  Cas.  99; 
Banks  v.  Farquharson,  1  Dick.  167  ;  Coop- 
er i'.  Marsdcn,  1  Esp.  1  ;  Prince  v.  Blaclc- 
burn,  2  East,  250;  Sluby  v.  Champlin,  4 
Johns.  461  ;  Dudley  v.  Sumner,  5  Mass. 
444;  Homer  v.  Wallis,  11  Mass.  309; 
Cook  i>.  Woodrow,  5  Cranch,  13;  Baker 
V.  Blunt,  2  Hayw.  404  ;  Ilodnett  v.  For- 
man,  1  Stark.  90;  Glubb  v.  Edwards,  2 
M.  &  Rob.  300  ;  Engles  v.  Bruington,  4 
Yeates,  345;  Wiley  i).  Bean,  1  Gilman, 
302;  Dunbar  v.  Marden,  13  N.  H.  311. 
If  the  witness  has  set  out  to  leave  the  ju- 
risdiction by  sea,  but  the  sliip  has  been 
beaten  back,  he  is  still  considered  absent. 
Ward  V.  Wells,  1  Taunt.  461.  See  also 
Emery  v.  Twombly,  5  Shepl.  65  [Teall 
V.  Van  Wyck,  10  Barb.  376;  Foote  v. 
Cobb,  18  Ala.  585 ;  Cox  v.  Davis,  17  Id 
714.] 

8  Fassett  v.  Brown,  Peake's  Cas.  23. 


CHAP.  VI.] 


PRIVATE   WRITINGS. 


623 


the  instrument  is  lost,  and  the  name  of  the  subscribing  witness 
is  unknown  ;  ^  or,  if  the  Avitness  is  insane  ;2  or,  has  subsequently 
become  infamous ;  ^  or,  has  become  the  adverse  party ;  "*  or,  has 
been  made  executor  or  administrator  to  one  of  the  parties,  or  has 
otherwise,  and  without  the  agency  of  the  party,  subsequently 
become  interested,  or  otherwise  incapacitated ;  ^  or  was  incapaci- 
tated at  the  time  of  signing,  but  the  fact  was  not  known  to  the 
party  ;  ^  in  all  these  cases,  the  execution  of  the  instrument  may 
be  proved  by  other  evidence.  If  the  adverse  party,  pending  the 
cause,  solemnly  agrees  to  admit  the  execution,  other  proof  is 
not  necessary."  And  if  the  witness,  being  called,  denies,  or  does 
not  recollect,  having  seen  it  executed,  it  may  be  established  by 
other  evidence.^  If  the  witness  has  become  blind,  it  has  been 
held  that  this  did  not  excuse  the  party  from  calling  him  ;  for  he 
may  be  able  still  to  testify  to  other  parts  of  the  res  gestce  at  the 
time  of  signing.^  If  the  witness  was  infamous  at  the  time  of 
attestation,  or  was  interested,  and  continues  so,  the  party  not 
then  knowing  the  fact,  the  attestation  is  treated  as  a  nuUity.i*' 

1  Esp.  97 ;  Park  v.  Hears,  3  Esp.  171 
Fitzgerald  i'.  Elsee,  2  Campb.  635 ;  Blur 
ton  V.  Toon,  Skin.  639 ;  McCraw  v.  Gen 
try,  3  Campb.  132  ;  Grellier  v.  Neale, 
Peake's  Cas.  145 ;  Whitaker  v.  Salisbury, 
15  Pick.  534  ;  Quimby  v.  Biizzell,  4  Shepl. 
470;  supra,  §  272.  Where  one  of  the  at- 
testing witnesses  to  a  will  has  no  recollec- 
tion of  having  subscribed  it,  but  testifies 
that  the  signature  of  his  name  thereto  is 
genuine;  the  testimony  of  another  attest- 
ing witness,  that  tlie  first  did  subscribe 
his  name  in  the  testator's  presence,  is  suf- 
ficient evidence  of  that  fact.  Dewey  v. 
Dewey,  1  Met.  349.  See  also  Quimby  v. 
Buzzell,  4  Shepl.  470 ;  New  Haven  Co. 
Bank  v.  Mitcliell,  15  Conn.  206.  If  the 
witness  to  a  deed  recollects  seeing  the 
signature  only,  but  the  attesting  clause 
isin  the  usual  formula,  the  jury  will  be 
advised,  in  the  absence  of  controlling  cir- 
cumstances, to  find  the  sealing  and  de- 
livery also.  Burling  v.  Paterson,  9  C.  <Ss 
P.  570.     See  supra,  §  38  a. 

9  Cronk  v.  Frith,  9  C.  &  P.  197;  s.  c. 

2  M.  &  Rob.  262,  per  Ld.  Abinger,  C.  B. ; 
Rees  V.  Williams,  1  De  Gex  &  Sniale,  314. 
In  a  former  case  of  Pedler  v.  Paige,  1  M. 
&  Rob.  258,  Parke,  J.,  expressed  himself 
of  the  same  opinion,  but  felt  bound  by  the 
opposite  ruling  of  Ld.  Holt,  in  Wood  v. 
Drurv,  1  Ld.  Ravm.  734. 

i«  Swire  v.  Bell,  5  T.  R.  371  ;  Honey- 
wood  i:  Peacock,  3  Campb.  196;  Amherst 
Bank  v.  Root,  2  Met.  622. 


1  Keeling  i'.  Ball,  Peake's  Ev.  App.  78. 

2  Currie  v.  Child,  3  Campb.  283.  See 
also  3  T.  R.  712,  per  BuUer,  J. 

3  Jones  V.  Mason,  2  Stra.  833.  If  the 
conviction  were  previous  to  the  attesta- 
tion, it  is  as  if  not  attested  at  all.  1 
Stark.  Evid.  325. 

*  Strange  v.  Dashwood,  1  Cooper's  Ch. 
Cas.  497. 

5'  Goss  V.  Tracy,  1  P.  Wms.  289  ;  God- 
frey V.  Norris,  1  Stra.  34 ;  Davison  v. 
Bloomer,  1  Dall.  123  ;  Bulkley  v.  Smith, 
2  Esp.  697  ;  Cunliffe  v.  Sefton,  2  East, 
183;  Burrett  r.  Taylor,  9  Yes.  381 ;  Ham- 
ilton V.  Marsden,  6  Binn.  45  ;  Hamilton  v. 
Williams,  1  Hay w.  139 ;  Hovill  v.  Stephen- 
son, 5  Bing.  439,  per  Best,  C.  J.  ;  Saun- 
ders V.  Ferrill,  1  Iredell,  97.  And  see,  as 
to  the  manner  of  acquiring  the  interest, 
supra,  §  418. 

6  Nelius  V.  Brickell,  1  Hayw.  19.  In 
this  case,  the  witness  was  the  wife  of  the 
obligor.  And  see  Amherst  Bank  v.  Root, 
2  Met.  522.  that  if  the  subscribing  witness 
was  interested  at  the  time  of  attestation, 
and  is  dead  at  the  time  of  trial,  his  hand- 
writing may  not  be  proved.  For  such 
evidence  would  be  merely  secondary,  and 
therefore  admissible  only  in  cases  where 
the  primary  evidence  could  have  been  ad- 
mitted. 

7  Lang  V.  Raine,  2  B.  &  P.  85. 

8  Abbott  V.  Plumbe,  1  Doug.  216; 
Lesher  v.  Levan,  1  Dall.  96  ;  Ley  v.  Bal- 
lard, 3  Esp.  173,  n. ;  Powell  1;.  Blackett, 


624 


LAW   OF   EVIDENCE. 


[PAET  m. 


§  573.  Office  bonds.  A  fourth  exception  has  been  sometimes 
admitted,  in  regard  to  office  bonds,  required  by  law  to  be  taken  in 
the  name  of  some  public  functionary,  in  trust  for  the  benefit  of  all 
persons  concerned,  and  to  be  preserved  in  the  public  registry  for 
their  protection  and  use  ;  of  the  due  execution  of  which,  as  well 
as  of  their  sufficiency,  such  officer  must  first  be  satisfied  and  the 
bond  approved,  before  the  party  is  qualified  to  enter  upon  the 
duties  of  his  office.  Such,  for  example,  are  the  bonds  given  for 
their  official  fidelity  and  good  conduct,  by  guardians,  executors, 
and  administrators,  to  the  judge  of  probate.  Such  documents,  it 
is  said,  have  a  high  character  of  authenticity,  and  need  not  be 
verified  by  the  ordinary  tests  of  truth,  applied  to  merely  private 
instruments,  namely,  the  testimony  of  the  subscribing  witnesses  ; 
but  when  they  are  taken  from  the  proper  public  repository,  it  is 
only  necessary  to  prove  the  identity  of  the  obligor  with  the  party 
in  the  action.^  Whether  this  exception,  recently  asserted,  will  be 
generally  admitted,  remains  to  be  seen. 

§  573  a.  Proof  of  instrument  by  hand'writing  of  the  signer.  A 
further  exception  to  the  rule  requiring  j)roof  of  handwriting 
has  been  admitted,  in  the  case  of  letters  received  in  reply  to 
others  proved  to  have  been  sent  to  the  party.     Thus,  where  the 


1  Kello  V.  Maget,  1  Dev.  &  Bat.  414. 
The  case  of  deeds  enrolled  would  require  a 
distinct  consideration  in  this  place,  were 
not  the  practice  so  various  in  the  different 
States,  as  to  reduce  the  subject  to  a  mere 
question  of  local  law,  not  falling  within 
the  plan  of  this  work.  In  general,  it  may 
be  remarked,  that,  in  alltiie  United  States, 
provision  is  made  for  the  registration  and 
enrolment  of  deeds  of  conveyance  of 
lands  ;  and  that,  prior  to  such  registration, 
the  deed  must  bo  acknowledged  b3'  tlie 
grantor,  before  the  designated  magis- 
trate ;  and,  in  case  of  tlie  death  or  refusal 
of  tiie  grantor,  and  in  some  other  enume- 
rated cases,  the  deed  must  be  prored  by 
witnesses,  either  before  a  magistrate,  or 
in  a  court  of  record.  But,  generally  s})eak- 
ing,  such  acknowk'dgment  is  merely 
designed  to  entitle  the  deed  to  registra- 
tion, and  registration  is,  in  most  States, 
not  essential  to  passing  tiie  estate,  but  is 
only  intended  to  give  notoriety  to  the 
conveyance,  as  a  substitute  for  livery  of 
seisin.  And  such  acknowledgment  is  not 
generally  received,  as  /iriind  facie  evi- 
dence of  the  execution  of  the  deed,  unless 
by  force  of  some  statute,  or  immemorial 
usage,  rendering  it  so ;  but  the  grantor, 


or  party  to  be  affected  by  the  instrument, 
may  still  controvert  its  genuineness  and 
validity.  But  where  the  deed  falls  under 
one  of  the  exceptions,  and  has  been 
proved  per  testes,  there  seems  to  be  good 
reason  for  receiving  this  probate,  duly 
autlienticated,  as  sufficient  prima  facie 
proof  of  the  execution  ;  and  such  is  under- 
stood to  be  tlie  course  of  practice,  as 
settled  by  the  statutes  of  many  of  the 
United  States.  See  4  Cruise's  Dig.  tit. 
32,  c.  29,  §  1,  note,  and  c.  2,  §§  77,  80, 
notes  (Greenleaf's  ed.)  ;  2  Lomax's  Dig. 
3-J3  ;  Doe  v.  Johnson,  2  Scam.  522  ;  Mor- 
ris V.  Wadsworth,  17  Wend.  103  ;  Thur- 
man  v.  Cameron,  24  Wend.  87.  Tlie 
Englisli  doctrine  is  found  in  2  Phil.  Evid. 
243-247  ;  1  Stark.  Evid.  355-358.  And 
see  Mr.  Metcalfs  note  to  1  Stark.  Evid. 
357;  Brotlierton  v.  Livingston,  3  Watts 
&  Serg.  334  ;  Vance  v.  Schuyler,  1  Gilra. 
( 111.)  160.  Where  a  deed  executed  by  an 
officer  acting  under  autliority  of  law  is 
offered  in  evidence,  not  in  proof  of  title, 
but  in  proof  of  a  collateral  fact,  the 
authority  of  the  officer  needs  not  to  be 
shown.  Bollcs  v.  Beach,  3  Am.  Law 
Journ.  N.  9.  122.  See  Rev.  Stat.  Wiscon- 
sin, p.  525  ;  Rev.  Stat.  Illinois,  p.  108. 


CHAP.  VI.]  PEIVATE  WRITINGS.  625 

plaintiff's  attorney  wrote  a  letter  addressed  to  the  defendant  at 
his  residence,  and  sent  it  by  the  post,  to  which  he  received  a 
reply  purporting  to  be  from  the  defendant ;  it  was  held,  that  the 
letter  thus  received  was  admissible  in  evidence,  without  proof  of 
the  defendant's  handwriting,  and  that  letters  of  an  earlier  date  in 
the  same  handwriting  might  also  be  read,  without  other  proof. ^ 

§  573  5.  When  the  instrument  is  not  directly  in  issue.  A  fftli 
exception  to  the  rule  requiring  proof  by  the  subscribing  -witness 
is  admitted,  where  the  instrument  is  not  directly  in  issue,  but 
comes  incidentally  in  question  in  the  course  of  the  trial ;  in  which 
case,  its  execution  may  'be  proved  by  any  competent  testimony, 
without  calling  the  subscribing  witness.^ 

§  574.  Search  for  subscribing  witness.  The  degree  of  diligence 
in  the  search  for  the  subscribing  witnesses  is  the  same  which  is 
required  in  the  search  for  a  lost  paper,  the  principle  being  the  same 
in  both  cases.^  It  must  be  a  strict,  diligent,  and  honest  inquiry 
and  search,  satisfactory  to  the  court,  under  the  circumstances  of 
the  case.  It  should  be  made  at  the  residence  of  the  witness,  if 
known,  and  at  all  other  places  where  he  may  be  expected  to  be' 
found ;  and  inquiry  should  be  made  of  his  relatives,  and  others 
who  may  be  supposed  to  be  able  to  afford  information.  And  the 
answers  given  to  such  inquiries  may  be  given  in  evidence,  they 
being  not  hearsay,  but  parts  of  the  res  gestce^  If  there  is  more 
than  one  attesting  witness,  the  absence  of  them  all  must  be 
satisfactorily  accounted  for,  in  order  to  let  in  the  secondary 
evidence.^ 

§  575.  Proof  of  signature  of  one  witness  sufGcient.  When  sec- 
ondary evidence  of  the  execution  of  the  instrument  is  thus  ren- 
dered admissible,  it  will  not  be  necessary  to  prove  the  handwriting 
of  more  than  one  witness.^  And  this  evidence  is,  in  general, 
deemed  sufficient  to  admit  the  instrument  to  be   read,"  being 

1  Ovenston  v.  Wilson,  2  Car.  &  Kir.  1.     of  each  case,  it  is  thought  unnecessary 

2  Curtis  V.  Belknap,  6  Washb.  433.  to  encumber  the  work  with  a  particular 
rOn  the  trial  of  an  indictment  for  obtain-     reference  to  them. 

ing  the  signature  to  a  deed  by  false  pre-  ^  Cunliffe  v.  Sefton,  2  East,  183;  Kel- 

tences,  the  deed  may  be  proved  by  ttie  sey  v.  Hanmer,   18  Conn.  311 ;    Doe  v. 

testimony  of  the  grantor,  without  calling  Hathaway,  2  Allen,  69. 
the  attesting  witness.    Commonwealth  v.  <^  Adams  v.  Kerr,  1  B.  &  P.  360 ;  3 

Castles,  20  Law  Rep.  (10  n.  s.)  411.J  Preston  on  Abstracts  of  Title,  pp.  72,  73. 

3  Supra,  %  bbS.  "^  Kay  f.  Brookman,  3  C.  &  P.  555" 

4  The  cases  on  this  subject  are  nu-  Webb  v.  St.  Lawrence,  3  Bro.  P.  C.  640 
merous;  but  as  the  application  of    the  Mott  v.   Doughty,    1   Johns.    Cas.   230 
rule  is  a  matter  in  the  discretion  of  the  Sluby  v.  Champlin,  4  Johns.  461 ;  Adams 
judge,  under  the  particular  circumstances  v.  Kerr,  1  B.  &  P.  360 ;  Cunliffe  v.  Sefton, 

vnr..   I.  40 


626 


LAW   OF  EVIDENCE. 


[part  m. 


accompanied  with  proof  of  the  identity  of  the  party  sued  with  the 
person  who  appears  to  have  executed  the  instrument ;  which 
proof,  it  seems,  is  now  deemed  requisite,^  especially  where  the 


2  East,  183 ;  Prince  v.  Blackburn,  2  East, 
250;  Douglas  v.  Sanderson,  2  Dall.  116; 
Cooke  V.  Woodrow,  5  Cranch,  13;  Plam- 
ilton  V.  Marsden,  6  Binn.  45 ;  Powers  v. 
McFerran,  2  S.  &  R.  W;  MeKinder  v. 
Littlejohii,  1  Iredell,  66.  Some  courts 
have  also  required  proof  of  tlie  hand- 
writing of  the  obligor,  in  addition  to  that 
of  the  subscribing  witness  ;  but  on  this 
point  the  practice  is  not  uniform.  Clark 
r.  Courtnej',  5  Peters,  319;  Hopkins  i*. 
De  Graffenreid,  2  Bay,  lb7  ;  Oliphant  v. 
Taggart,  1  Bay,  255 ;  Irving  v.  Irving,  2 
Hayw.  27;  Clark  v.  Saunderson,  3  Binn. 
192;  Jackson  v.  La  Grange,  19  Johns. 
386;  Jackson  v.  Waldron,  13  Wend.  178, 
183,  197,  198,  semhie.  See  also  Gough  v. 
Cecil,  1  Selw.  N.  P.  538,  n.  (7),  UOth 
ed.).  See  supra,  §  81,  n.;  Thomas  v. 
Turnley,  2  Rob.  (La.)  206;  Dunbar  v. 
Marden,  13  N.  H.  311. 

1  Whitelocke  v.-  Musgrove,  1  C.  &  M. 
511.  But  it  seems  that  slight  evidence 
of  identity  will  sufHce.  See  Nelson  v. 
Whittall,  1  B.  &  Aid.  19;  Warren  v. 
Anderson,  8  Scott,  384.  See  also  1 
Selw.  N.  P.  5.38,  n.  (7),  (18th  ed.) ;  Phil. 
&  Am.  on  Evid.  661,  n.  (4).  This  subject 
has  recently  been  reviewed,  in  the  cases 
of  Sewell  V.  Evans,  and  Roden  v.  Ryde, 
4  Ad.  &  El.  N.  s.  626.  In  the  former 
case,  whicli  was  an  action  for  goods  sold, 
against  William  Seal  Evans,  it  was  proved 
that  the  goods  had  been  sold  to  a  person 
of  that  name,  who  had  been  a  customer, 
and  had  written  a  letter  acknowledging 
the  receipt  of  the  goods ;  but  tliere 
was  no  other  proof  that  this  person  was 
the  defendant.  In  the  latter  case,  which 
was  against  Henrij  Thomas  Rifde,  as  the 
acceptor  of  a  bill  of  exchange,  it  ap- 
])eared  that  a  person  of  that  name  had 
kept  cash  at  the  hank  where  the  bill  was 
payable,  and  had  drawn  cliecks,  which 
the  cashier  had  paid.  Tiie  cashier  knew 
the  person's  handwriting  by  the  checks, 
and  testified  tliat  the  acceptance  was  in 
tlie  same  writing;  but  he  had  not  paid 
any  check  for  some  time,  and  did  not 
personally'  know  him  ;  and  tliere  was  no 
other  proof  of  his  identity  with  the  de- 
fendant. Tiie  court,  in  both  these  cases, 
held  that  the  evidence  of  identity  was 
prima  facie  sufficient.  In  the  latter  case, 
the  learned  judges  gave  their  reasons  as 
follows :  Lord  Dennian,  C.  J.,  "  Tlie 
doubt  raised  here  has  arisen  out  of  the 
case  of  Whitelocke  v.  Musgrove  (1  C.  & 
M.  611;  s.  c.  8  Tyrwh.  541);  but  there 


the  circumstances  were  different.  The 
party  to  be  fixed  witli  liability  was  a 
marksman,  and  the  facts  of  the  case 
made  some  explanation  necessary.  But 
where  a  person,  in  the  course  of  the 
ordinary  transactions  of  life,  has  signed 
his  name  to  such  an  instrument  as  this, 
I  do  not  think  tliere  is  an  instance  in 
which  evidence  of  identity  has  been  re- 
quired, except  Jones  v.  Jones  (9  M.  &  W. 
75).  There  the  name  was  proved  to  be 
very  common  in  the  country ;  and  I  do 
not  say  that  evidence  of  tliis  kind  may 
not  be  rendered  necessary  by  particular 
circumstances,  as,  for  instance,  length  of 
time  since  the  name  was  signed.  But  in 
cases  where  no  particular  circumstance 
tends  to  raise  a  question  as  to  tlie  party 
being  the  same,  even  identity  of  name  is 
something  from  which  an  inference  may 
be  drawn.  If  the  name  were  only  John 
Smith,  which  is  of  very  frequent  occur- 
rence, there  might  not  be  much  ground 
for  drawing  the  conclusion.  But  Henri/ 
Thomas  Rydes  are  not  so  numerous  ;  and 
from  that,  and  the  circumstances  gen- 
erally, there  is  every  reason  to  believe 
that  the  acceptor  and  the  defendant  are 
identical.  The  dictum  of  BoUand,  B.  (3 
Tyrwh.  558),  has  been  already  answered. 
Lord  Lyndliurst,  C.  B.,  asks  (3  Tyrwh. 
543),  why  the  onus  of  proving  a  negative 
in  these  cases  should  be  thrown  upon  the 
defendant;  the  answer  is,  because  the 
l^roof  is  so  easy.  He  might  come  into 
court  and  have  the  witness  asked  wliether 
he  was  the  man.  The  supposition  that 
the  right  man  has  been  sued  is  reasonable, 
on  account  of  the  danger  a  party  would 
incur,  if  he  served  process  on  the  wrong ; 
for,  if  he  did  so  wilfully,  the  court  would 
no  doubt  exercise  their  jurisdiction  of 
punisliing  for  a  contempt.  But  tiie  fraud 
is  one  which,  in  the  majority  of  cases,  it 
would  not  occur  to  any  one  to  commit. 
The  practice,  as  to  proof,  whicli  has  con- 
stantly prevailed  in  cases  of  tiiis  kind, 
shows  liow  unlikely  ;t  is  tliat  sucii  frauds 
should  occur.  The  doubt  now  suggested 
has  never  been  raised  betbre  the  late  cases 
which  have  been  referred  to.  The  obser- 
vations of  Lord  Abinger  and  Alderson, 
B.,  in  Greenshields  v.  Crawford  (9  M.  & 
W.  314),  apply  to  this  case.  Tlie  trans- 
actions of  liie  world  could  not  go  on,  if 
sucli  an  objection  were  to  prevail.  It  is 
unfortunate  that  the  doubt  sliould  ever 
have  been  raised ;  and  it  is  best  tiiat  we 
should  sweep  it  away  as  soon  as  we  can." 


CHAP.  VI.] 


PRIVATE  WHITINGS. 


627 


deed  on  its  face  excites  suspicion  of  fraud.^  The  instrument  may 
also  in  such  cases  be  read,  upon  proof  of  the  handwriting  of  the 
obligor,  or  party  by  whom  it  was  executed ;  ^  but  in  this  case 
also  it  is  conceived,  that  the  like  proof  of  the  identity  of  the 
party  should  be  required.  If  there  be  no  subscribing  witness, 
the  instrument  is  sufficiently  proved  by  any  competent  evidence 
that  the  signature  is  genuine.^ 

§  576.  Proof  by  comparison  of  handwritings.  In  considering  the 
proof  of  private  writings,  we  are  naturally  led  to  consider  the 
subject  of  the  comparison  of  hands,  upon  which  great  diversities 
of  opinion  have  been  entertained.  This  expression  seems  for- 
merly to  have  been  applied  to  every  case,  where  the  genuineness 
of  one  wilting  was  proposed  to  be  tested  before  the  jury,  by  com- 
paring it  with  another,  even  though  the  latter  were  an  acknowl- 
edged autograph  ;  and  it  was  held  inadmissible,  because  the  jury 
were  supposed  to  be  too  illiterate  to  judge  of  this  sort  of  evidence  ; 
a  reason  long  since   exploded.^     All  evidence  of  handwriting. 


—  Patteson,  J. :  "I  concur  in  all  that  has 
been  said  by  my  lord.  And  the  rule 
always  laid  down  in  books  of  evidence 
agrees  with  our  present  decision.  The 
execution  of  ti  deed  has  always  been 
proved,  by  mere  evidence  of  the  sub- 
scribing witness's  handwriting,  if  he  was 
dead.  The  party  executing  an  instru- 
ment may  have  changed  his  residence. 
Must  a  plaintiff  show  where  he  lived  at 
the  time  of  the  execution,  and  then  trace 
him  through  every  change  of  habitation, 
until  he  is  served  with  the  writ?  No 
such  necessity  can  be  imposed."  —  Wil- 
liams, J. :  "I  am  of  the  same  opinion. 
It  cannot  be  said  here  there  was  not 
some  evidence  of  identity'.  A  man  of 
the  defendant's  name  had  kept  money  at 
the  branch  bank ;  and  this  acceptance  is 
proved  to  be  his  writing.  Then,  is  that 
man  the  defendant?  That  it  is  a  person 
of  the  same  name  is  some  evidence,  until 
another  party  is  pointed  out  who  might 
have  been  the  acceptor.  In  Jones  v. 
Jones  (9  M.  &  W.  75),  the  same  proof 
was  relied  upon  ;  and  Lord  Abinger  said : 
'The  argument  for  the  plaintiff  miglit 
be  correct,  if  the  case  had  not  introduced 
the  existence  of  many  Hugh  Joneses  in 
the  neighborhood  where  the  note  was 
made.'  It  appeared  that  the  name  Hugh 
Jones,  in  the  particular  part  of  Wales, 
was  so  common  as  hardly  to  be  a  name ; 
so  that  a  doubt  was  raised  on  the  evi- 
dence by  cross-examination.  That  is  not 
so  here;   and  therefore    the  conclusion 


must  be  different."  [In  tracing  titles, 
identity  of  name  is  prima  facie  evidence 
of  identity  of  person.  Balbie  i".  Don- 
aldson, 2  Grant  (Penn.),  450;  Bogue  v. 
Barlow,  29  Vt.  179;  Chambhs  v.  Tarbox, 
27  Texas,  139.] 

1  Brown  v.  Kimball,  25  "Wend.  469. 

2  In  Jackson  v.  Waldron,  11  Wend. 
178,  183,  196,  197,  proof  of  the  hand- 
writing of  the  obligor  was  held  not  reg- 
ularly to  be  offered,  unless  the  party  was 
unable  to  prove  the  handwriting  of  the 
witness.  But  in  Valentine  v.  Piper,  22 
Pick.  90,  proof  of  the  handwriting  of 
the  party  was  esteemed  more  satisfactory 
than  that  of  the  witnesses.  Tlie  order 
of  the  proofs,  however,  is  a  matter  rest- 
ing entirely  in  the  discretion  of  the 
court. 

3  Pullen  V.  Hutchinson,  12  Shepl.  249. 

*  The  admission  of  evidence  by  com- 
parison of  hands,  in  Col.  Sidney's  case, 
8  Howell's  St.  Tr.  467,  was  one  of  the 
grounds  of  reversing  his  attainder.  Yet, 
though  it  clearly  appears  that  his  hand- 
writing was  proved  by  two  witnesses, 
who  had  seen  him  write,  and  by  a  third 
who  had  paid  bills  purporting  to  have 
been  indorsed  by  him,  this  was  held 
illegal  evidence  in  a  criminal  case.  [In 
Jumpertz  v.  The  People,  21  III.  375,  tiie 
English  rule  is  adhered  to.  In  some  of 
the  States,  the  witnesses  are  allowed  to 
testify  from  comparison  of  handwriting 
with  that  admitted  to  be  genuine.  Power 
V.  Frick,  2  Grant's  Cases,  306.     Tliat  is 


628 


LA"W   OF  EVIDENCE. 


[part  III. 


except  where  the  witness  saw  the  document  written,  is,  in  its 
nature,  comparison.  It  is  the  belief  which  a  witness  entertains, 
upon  comparing  the  writing  in  question  with  its  exemplar  in  his 
mind,  derived  from  some  previous  knowledge  .^  The  admissi- 
bility of  some  evidence  of  this  kind  is  now  too  well  established  to 
be  shaken.  It  is  agreed  that,  if  the  witness  has  the  proper  knowl- 
edge of  the  party's  handwriting,  he  may  declare  his  belief  in  regard 
to  the  genuineness  of  the  writing  in  question.  He  may  also  be 
interrogated  as  to  the  circumstances  on  which  he  founds  his 
belief.2  The  point  upon  which  learned  judges  have  differed  in 
opinion  is,  upon  the  source  from  which  tliis  knowledge  is  derived, 
rather  than  as  to  the  degree  or  extent  of  it. 

§  577.  Same  subject.  There  are  two  modes  of  acquiring  this 
Tcnowledge  of  the  handwriting  of  another,  either  of  which  is  uni- 
versally admitted  to  be  sufficient,  to  enable  a  witness  to  testify  to 
its  genuineness.  The  first  is  from  having  seen  him  write.  It  is 
held  sufficient  for  this  purpose,  that  the  witness  has  seen  him 
write  but  once,  and  then  only  his  name.  The  proof  in  such  case 
may  be  very  light ;  but  the  jury  will  be  permitted  to  weigh  it.^ 


not  generally  allowed  to  ordinary  -wit- 
nesses, the  jury  being  supposed  as  com- 
petent to  make  the  comparison  as  such 
witnesses.  Chandler  v.  Le  Barron,  45 
Maine,  534 ;  Adams  v.  Field,  21  Vt.  '25G. 
But  experts  are  allowed  to  testify  whether 
the  signature  in  dispute  is  by  the  same 
hand  as  another  admitted  to  be  genuine. 
And  while  comparison  of  handwriting 
by  the  jury  is  restricted  in  the  English 
practice  to  writings  put  in  the  case  for 
other  purposes,  it  is  allowed  in  the 
American  States  to  put  in  genuine  signa- 
tures, written  before  the  controversy 
arose,  for  the  mere  pur])ose  of  enabling 
the  jury  to  judge  by  comparison.  Adams 
V.  Field,  supra,  by  Bennett,  J.  But  those 
having  much  experience  in  the  trial  of 
questions  depending  upon  the  genuine- 
ness of  handwriting  will  not  require  to 
be  reminded  that  tliere  is  nothing  in  the 
whole  range  of  the  law  of  evidence, 
more  unreliable,  or  where  courts  and 
juries  are  more  liable  to  be  imposed 
upon.] 

1  Doe  V.  Suckermore,  5  Ad.  &  El.  7oO, 
per  Pattcson,  J.  See,  also,  the  remarks 
of  Mr.  Evans,  2  Poth.  Obi.  App.  xvi.  §  G, 
ad.  calc.  p.  1G2. 

2  Keg.  V.  Murphy,  8  C.  &  P.  297; 
Commonwealth  v.  Webster,  6  Cush.  2'J5 
[Keith  V.  Lathrop,  10  Id.  453]. 

8  Garrells   v.  Alexander,  4  Esp.  87. 


In  Powell  V.  Ford,  2  Stark.  164,  the  wit- 
ness had  never  seen  the  <Jefendant  write 
his  Christian  name  ;  but  only  "  M.  Ford," 
and  then  but  once ;  whereas  the  accept- 
ance of  the  bill  in  question  was  written 
with  both  the  Christian  and  surname  at 
full  length;  and  Lord  EUenborough 
thought  it  not  sufficient,  as  the  witness 
had  no  perfect  exemplar  of  the  signa- 
ture in  his  mind.  But  in  Lewis  v.  Sapio, 
1  M.  &  JNlalk.  39,  where  the  signature 
was  "  L.  B.  Sapio,"  and  the  witness  had 
seen  him  write  several  times,  but  always 
"i\Ir.  Sapio,"  Lord  Tenterden  held  it 
sufficient.  A  witness  has  also  been  per- 
mitted to  speak  as  to  the  genuineness  of 
a  person's  mark,  from  having  seen  it 
affixed  by  him  on  several  occasions. 
George  v.  Surrey,  1  M.  &  Malk.  516. 
But  where  the  knowledge  of  the  hand- 
writing has  been  obtained  by  the  witness 
from  seeing  the  party  write  his  name, 
for  that  purpose,  after  the  commencement 
of  the  suit,  the  evidence  is  held  inadmis- 
sible. Stranger  v.  Searle,  1  Esp.  14. 
See  also  Page  v.  Homans,  2  Shepl.  478. 
In  Slaymaker  v.  Wilson,  1  Penn.  216, 
the  deposition  of  a  witness,  who  swore 
positively  to  her  father's  hand,  was  re- 
jected, because  she  did  not  say  how  she 
knew  it  to  be  his  hand.  But  in  Moody  v. 
Rowell,  17  Pick.  41)0,  such  evidence  was 
very   properly   held    sufficient,   on    the 


CHAP.  VI.] 


PRIVATE  WEITINGS. 


629 


The  second  mode  is,  from  having  seen  letters,  bills,  or  other 
documents,  purporting  to  be  the  handwriting  of  the  party,  and 
having  afterwards  personally  communicated  with  him  respecting 
them ;  or  acted  upon  them  as  his,  the  party  having  known  and 
acquiesced  in  such  acts,  founded  upon  their  supposed  genuine- 
ness ;  or,  by  such  adoption  of  them  into  the  ordinary  business 
transactions  of  life,  as  induces  a  reasonable  presumption  of  their 
being  his  own  writings ;  evidence  of  the  identity  of  the  party 
being  of  course  added  aliunde,  if  the  witness  be  not  personally 
acquainted  with  him.^  In  both  these  cases,  the  witness  acquires 
his  knowledge  by  his  own  observation  of  facts,  occurring  under 
his  own  eye,  and  which  is  especially  to  be  remarked,  without 
having  regard  to  any  particular  person,  case,  or  document. 

§  578.   Same   subject.     This   rule,   requiring  personal   knowl- 
edge on  the  part  of  the  witness,  has  been  relaxed  in  two  cases. 


ground,  that  it  was  for  the  other  party 
to  explore  the  sources  of  the  depenent's 
knowledge,  if  he  was  not  satisfied  that  it 
■was  sufficient.  [Bowman  v.  Sanborn,  5 
Foster,  87 ;  Hopkins  v.  Megquire,  35 
Maine,  78;  West  v.  State,  2  N.  J. 
212.  Before  being  admitted  to  testify  as 
to  the  genuineness  of  a  controverted  sig- 
nature from  his  knowledge  of  the  hand- 
writing of  the  party,  a  witness  ought, 
beyond  all  question,  to  have  seen  the 
party  write,  or  be  conversant  with  his 
acknowledged  signature.  The  teller  of 
a  bank,  wiio  as  such  has  paid  many 
checks  purporting  to  be  drawn  by  a  per- 
son who  has  a  deposit  account  with  the 
bank,  but  has  not  seen  him  write,  if  _  the 
testimony  shows  nothing  further,  is  a 
competent  witness  to  testify  as  to  the 
liandwriting  of  such  person ;  but  he  is 
not  a  competent  witness  to  testify  to  the 
handwriting  of  such  person,  if  it  appears 
that  some  of  the  checks  so  paid  were 
forged,  and  that  the  witness  paid  alike 
the  forged  and  genuine  checks.  Brighara 
V.  Peters,  1  Gray,  139,  145,  146.  A  wit- 
ness who  has  done  business  with  the 
maker  of  the  note,  and  seen  him  write, 
but  only  since  the  date  oi  the  disputed  note, 
may  nevertheless  give  his  opinion  in  re- 
gard to  the  genuineness  of  the  note,  the 
objection  going  to  the  weight  and  not  to 
the  competency  of  the  evidence.  Keith 
V.  Lathrop,  10  Cush.  453.] 

1  Doe  V.  Suckermore,  5  Ad.  &  El.  731, 

{ler  Patteson,  J. ;  Lord  Ferrers  v.  Shir- 
ey,  Fitzg.  105 ;  Carey  v.  Pitt,  Peake's 
Evid.  App.  81 ;  Thorpe  i'.  Gisbiirne,  2  C. 
&  P,  21 ;  Harrington  v.  Fry,  Ry.   &  M. 


90 ;  Commonwealth  v.  Carey,  2  Pick.  47 ; 
Johnson  v.  Daverne,  19  Johns.  1.34 ;  Burr 
V.  Harper,  Holt's  Cas.  420;  Pope  v. 
Askew,  1  Iredell,  16.  If  a  letter  has 
been  sent  to  the  adverse  party,  by  post, 
and  an  answer  received,  the  answer  may 
be  read  in  evidence,  without  proof  of 
the  handwriting.  Ovenston  v.  Wilson, 
2  C.  &  K.  1 ;  supra,  §  573  a.  [In  McKeone 
V.  Barnes,  108  Mass.  344,  it  was  held,  that 
a  letter  received  by  the  witness,  pur- 
porting to  be  from  the  testator,  in  reply 
to  a  letter  sent  to  him  by  the  witness, 
cannot  be  used  as  a  standard  of  com- 
parison, without  further  proof  of  its 
authenticity.  In  Com.  v.  Coe,  115  Mass. 
481,  it  was  held,  that  the  question  of  the 
admissibility  of  a  paper  offered  as  a  stand- 
ard of  comparison  is  for  the  judge,  and 
final  so  far  as  it  is  a  question  of  fact;  and 
that  exceptions  to  its  admissibility  will 
not  be  sustained,  unless  it  clearly  appears 
that  there  was  some  erroneous  applica- 
tion of  the  principles  of  law  to  the  facts 
of  the  case.  In  this  case,  a  note  signed 
by  the  party  whose  signature  was  con- 
tested, was  put  in.  The  signature  alone 
was  admitted.  From  the  similarity  of 
the  letters  "Jan."  in  the  date  to  the 
letters  "Jam"  in  the  name,  the  prose- 
cuting officer  was  allowed  to  argue  that 
"Jan."  was  also  in  the  handwriting  of 
the  defendant,  and  to  use  those  let- 
ters in  the  date  thus  proved  as  another 
standard.  See  also  Blair  v.  Pelham,  118 
Mass.  420.]  Kinney  v.  Flynn,  2  R.  I. 
319 ;  McKonkey  v.  Gaylord,  1  Jones,  Law 
(N.C.),  94. 


630  LAAV   OF  EVIDENCE.  [PAUT  IH. 

(1.)  Where  writings  are  of  such  antiquity,  that  living  witnesses 
cannot  be  had,  and  yet  are  not  so  old  as  to  prove  themselves.^ 
Here  the  course  is,  to  produce  other  documents,  either  admitted 
to  be  genuine,  or  proved  to  have  been  respected  and  treated  and 
acted  upon  as  such,  by  all  parties ;  and  to  call  experts  to  compare 
them,  and  to  testify  their  opinion  concerning  the  genuineness  of 
the  instrument  in  question.^  (2.)  Where  other  writings,  admitted 
to  be  genuine,  are  already  in  the  case.  Here  the  comparison  may 
be  made  by  the  jury,  with  or  without  the  aid  of  experts.  The 
reason  assigned  for  this  is,  that  as  the  jury  are  entitled  to  look  at 
such  wi-itings  for  one  purpose,  it  is  better  to  permit  them,  under 
the  advice  and  direction  of  the  court,  to  examine  them  for  all 
purposes,  than  to  embarrass  them  with  impracticable  distinctions, 
to  the  peril  of  the  cause  .^ 

§  579.  Same  subject.  A  third  mode  of  acquiring  knowledge  of 
the  party's  handwriting  was  proposed  to  be  introduced  in  the 
case  of  Doe  v.  Suckermore;^  upon  which,  the  learned  judges 
being  equally  divided  in  opinion,  no  judgment  was  given  ;  namely, 
by  first  satisfying  the  witness,  by  some  information  or  evidence 
not  falling  under  either  of  the  two  preceding  heads,  that  certain 
papers  were  genuine,  and  then  desiring  the  witness  to  study 
them,  so  as  to  acquire  a  knowledge  of  the  party's  handwriting, 
and  fix  an  exemplar  in  his  mind ;  and  then  asking  him  his  opin- 
ion in  regard  to  the  disputed  paper  ;  or  else,  by  offering  such 
papers  to  the  jury,  with  proof  of  their  genuineness,  and  then  ask- 

1  Sxtjyra,  §  570.  other  purpose    of    the   cause),   and  he 

2  See  20  Law  Mag.  323 ;  Brune  v.  stated  that  he  believed  them  to  be  his. 
Rawlings,  7  East,  282 ;  Morewood  v.  Ou  the  following  day,  the  plaintiff  ten- 
Wood,  U  East,  323;  Gould  v.  Jones,  1  dered  a  witness,  to  prove  the  attestation 
W.  Bl.  384;  Doe  v.  Tarver,  By.  &  M.  not  to  be  genuine.  The  witness  was  an 
143 ;  Jackson  v.  Brooks,  8  Wend.  426.  inspector  at  the  Bank  of  England,  and 

»  See   20  Law    Mag.    319,   323,   324 ;  had  no  knowledge  of  the  handwriting  of 

Griffith  V.  Williams,  1  C.  &  J.  47 ;  Solita  the   supposed   attesting  witness,  except 

V.   Yarrow,    1    M.   &  Rob.   133 ;  Rex  v.  from  having,  previously  to  the  trial  and 

Morgan.  Id.  134,  n. ;  Doe  v.  Newton,  5  again  between   the  two  days,  examined 

Ad.  &  El.  514;  Bromage  v.  Rice,  7  C.  &  the  signatures  admitted  by  the  attesting 

r  548;  Hammond's  case,  2  Greenl.  33;  witness,  which  admission  he  had  heard  in 

VVaddi'ngton  v.  Cousins,  7  C.  &  P.   595  court.     Per  Lord   Denman,    C.   J.,  and 

I  Van  Wyck  v.  Mcintosh,  4  Kernan,  439].  Williams,  J.,  such  evidence  was  receiy- 

*  5  v\d.  &  El.  703.     In  this  case,  a  de-  able ;  per  Patteson  and  Coleridge,  JJ.,  it 

fendant  in  ejectment  produced  a  will,  and,  was  not.  [If  the  document  containing  the 

on  one  day  of  the  trial  (which  lasted  sev-  disputed  signature  cannot  be  brought  into 

eral  days),  called  an  attesting  witness,  court,  a  competent  witness  who  has  seen 

who  swore  that  the  attestation  was  his.  and  examined  it  may  testify  as  to  its 

On  his  cross-examination,  two  signatures  genuineness.     Sayer   i;.    Glossop,   2   Ex. 

to  depositions,  respecting  the  same  will,  409.     If  it  can,  opinion  founded  on  Us 

in   an   ecclesiastical   court,  and   several  examination  out  of  court  is  inadmissi- 

other    signatures,   were    shown   to   him  ble.    Eitzwalter  Peer.  Case,  10  CI.  &  Fin. 

(none  of  these  being  in  evidence  for  any  193.] 


CHAP.  VI.]  PEIVATiE  •WEITDSTGS.  631 

ing  the  witness  to  testify  his  opinion,  whether  those  and  the 
disputed  paper  were  written  by  the  same  person.  This  method 
supposes  the  writing  to  be  generally  that  of  a  stranger  ;  for  if  it 
is  that  of  the  party  to  the  suit,  and  is  denied  by  him,  the  witness 
may  well  derive  his  knowledge  from  papers,  admitted  by  that 
party  to  be  genuine,  if  such  papers  were  not  selected  nor  fabri- 
cated for  the  occasion,  as  has  already  been  stated  in  the  preced- 
ing section.  It  is  obvious,  that  if  the  witness  does  not  speak 
from  his  own  knowledge,  derived  in  the  first  or  second  modes 
before  mentioned,  but  has  derived  it  from  papers  shown  to  him 
for  that  purpose,  the  production  of  these  papers  may  be  called 
for,  and  their  genuineness  contested.  So  that  the  tliird  mode  of 
information  proposed  resolves  itself  into  this  question ;  namely, 
whether  documents,  irrelevant  to  the  issues  on  the  record,  may 
be  received  in  evidence  at  the  trial,  to  enable  the  jury  to  institute 
a  comparison  of  hands,  or  to  enable  a  witness  so  to  do.i 

§  580.  Same  subject.  In  regard  to  admitting  such  evidence, 
upon  an  examination  in  chief,  for  the  mere  purpose,  of  enabling 
the  jury  to  judge  of  the  handwriting,  the  modern  English  deci- 
sions are  clearly  opposed  to  it.^  For  this,  two  reasons  have  been 
assigned :  namely,  first,  the  danger  of  fraud  in  the  selection  of 
the  writings,  offered  as  specimens  for  the  occasion ;  and,  secondly, 
that,  if  admitted,  the  genuineness  of  these  specimens  may  be  con- 
tested, and  others  successively  introduced,  to  the  infinite  multi- 
plication of  collateral  issues,  and  the  subversion  of  justice.  To 
which  may  be  added,  the  danger  of  surprise  upon  the  other 
party,  who  may  not  know  what  documents  are  to  be  produced, 
and,  therefore,  may  not  be  prepared  to  meet  the  inferences 
drawn  from  them.^     The  same  mischiefs  would  follow,  if  the 

1  See  5  Ad.  &  El.  734,  per  Patteson,  tion,  to  show  him  a  paper  signed  R.  H., 
j_  and  ask  him  if  it  was  genuine,  tliougli  it 

2  Bromage  v.  Rice,  7  C.  &  P.  548;  was  not  connected  with  the  cause;  and 
Waddington  v.  Cousins,  Id.  505;  Doe  v.  he  answering  that,  in  his  opinion,  it  was 
Newton,  5  Ad.  &  El.  514;  Hughes  v.  so,  it  was  held  proper  furtlier  to  ask  him 
Koo-crs/s  M.  &  W.  123;  Griffits  v.  Ivery,  wliether  he  would  now  say  that  he  had 
11  Ad.  &  El.  322;  The  Fitzwalter  Peer-  never  seen  a  genuine  signature  of  the 
at^e  10  CI.  &  Fin.  193;  Regina  r.  Barber,  party  without  tlie  initials  R.  W. ;  the 
l^c'ar.  &  Kir.  434.  See  also  Regina  v.  object  being  to  test  the  value  of  tlie 
Murpliy  1  Armstr.,  Macartn.,  &  Ogle,  witness's  opinion.  Younge  v.  Honner,  1 
204-  Regina  v.  Caldwell,  Id.  324.  But  Car.  &  Kir.  51  ;  s.  c.  2  M.  &  Rob.  536. 
where  a  witness,  upon  his  examination  in  ^  Phil.  &  Am.  on  Evid.  700,  701.  See 
chief  stated  his  opinion  tliat  a  signature  the  Law  Review,  No.  4,  for  August,  184o, 
was  not  genuine,  because  he  had  never  pp.  285-304,  where  this  subject  is  more 
seen  it  signed  R.  H.,  but  always  R.W.  fully  discussed. 

H.,  it  was  held  proper,  on  cross-examina- 


6'6'^ 


LAW   OF  EVIDENCE. 


[PAET  in. 


same  writings  were  introduced  to  the  jury  through  the  medium 
of  experts.^ 

§  581.  Same  subject.  But,  with  respect  to  the  admission  of 
papers  irrelevant  to  the  record,  for  the  sole  purpose  of  creating  a 
standard  of  comparison  of  handwriting,  the  American  decisions 
are  far  from  being  uniform. ^  If  it  were  possible  to  extract  from 
the  conflict: ng  judgments  a  rule,  which  would  find  support  from 
tlie  majority  of  them,  perhaps  it  would  be  found  not  to  extend 


1  Experts  are  received  to  testify, 
whether  the  writing  is  a  real  or  a  feigned 
hand,  and  may  compare  it  with  other 
writings  already  in  evidence  in  the  cause. 
Eevett  V.  Braiiam,  4  T.  R.  497 ;  Ham- 
mond's case,  2  Greenl.  33;  Moody  v. 
Rowell,  17  Pick.  490;  Commonwealth  v. 
Carey,  2  Pick.  47 ;  Lyon  v.  Lyman,  9 
Conn.  55 ;  Hubly  v.  Vanhorne,  7  S.  &  R. 
185;  Lodge  v.  Phipher,  11  S.  &  R.  333. 
And  the  court  will  determine  whether 
the  witness  is  or  is  not  an  expert,  before 
admitting  him  to  testify.  The  State  v. 
Allen,  1  Hawks,  6.  But,  upon  this  kind 
of  evidence,  learned  judges  are  of  opinion 
that  very  little  if  any  reliance  ought  to 
be  placed.  See  Doe  v.  Suckermore,  5 
Ad.  &  El.  751,  per  Ld.  Denman  ;  Gurney 
V.  Langlands,  5  B.  &  Aid.  330;  Rex  v. 
Cator,  4  Esp.  117;  The  Tracy  Peerage, 
10  CI.  &  Fin.  154.  In  the  People  v. 
Spooner,  1  Denio,  343,  it  was  held  inad- 
missible. Where  one  writing  crosses  an- 
other, an  expert  may  testify  which,  in  his 
opinion,  was  the  first  made.  Cooper  v. 
Bockett,  4  Moore,  P.  C.  Cas.  433.  The 
nature  of  the  evidence  of  experts,  and 
whether  they  are  to  be  regarded  as  arbi- 
trators, or  (jHdsi  judges  and  jurors,  or 
merely  as  witnesses,  is  discussed  with 
great  acumen  by  Professor  Mittermaier, 
in  his  Treatise  on  Evidence  in  Criminal 
Cases  (Traite  de  la  Preuve  en  Matiere 
Criminelle),  ch.  xxvi. 

2  In  New  York,  Virginia,  and  North 
Carolina,  the  English  rule  is  adopted,  and 
sucli  testimony  is  rejected.  Jackson  v. 
Phillips,  y  Cowen,  'J4,  112;  Titford  v. 
Knott,  2  Johns.  Cas.  210.  The  People 
V.  Spooner,  1  Denio,  343.  [In  Goodyear?;. 
Yosburgh,  63  Barb.  154,  the  defendant, 
denying  the  genuineness  of  the  signature 
of  a'  witness  to  a  bill  of  sale,  upon  which 
the  suit  was  brought,  was  not  allowed  to 
avail  himself,  for  the  purpose  of  com- 
parison, of  the  signature  of  the  same  wit- 
ness, contained  in  an  assignment  of  a  lease, 
wliich  assignment  the  plaintiff  had  put 
in  evidence, — a  rule  ajiparently  more 
Strict  than  even  the  English  rule.]    Rowt 


V.  Kile,  1  Leigh,  216;  The  State  v. 
Allen,  1  Hawks,  6;  Pope  v.  Askew,  1 
Iredell,  16.  [So,  in  Rhode  Island,  Kinney 
V.  Flynn,  2  R.  1. 319 ;  and  Wisconsin,  Hazle- 
ton  V.  Wisconsin  R.  R.,  32  Wis.  34.  The 
weigiit  of  authority  in  Kentucky  is  against 
the  admission  of  handwritings  for  the 
purpose  of  comparison,  even  by  the  jury. 
Hawkins  v.  Grimes,  13  B.  Mon.  258. J 
In  Massachusetts,  Maine,  and  Connecticut, 
it  seems  to  have  become  the  settled 
practice  to  admit  any  papers  to  the  jury, 
whether  relevant  to  the  issue  or  not,  for 
the  purpose  of  comparison  of  the  hand- 
writing. Homer  v.  Wallis,  11  Mass.  309; 
Moody  V.  Rowell,  17  Pick.  490 ;  Richard- 
son V.  Newcomb,  21  Pick.  315;  Ham- 
mond's case,  2  Greenl.  33 ;  Lyon  v. 
Lyman,  9  Conn.  55.  In  New  Hampshire 
and  South  Carolina,  the  admissibility  of 
such  papers  has  been  limited  to  cases 
where  other  proof  of  handwriting  is 
already  in  the  cause,  and  for  the  purpose 
of  turning  the  scale  in  doubtful  cases. 
Myers  v.  Toscan,  3  N.  H.  47;  The 
State  V.  Carr,  5  N.  H.  367 ;  Bowman 
V.  Plunket,  3  McC.  518;  Duncan  v. 
Beard,  2  Nott  &  McC.  401.  In  Peunsj/l- 
vania,  the  admission  has  been  limited  to 
papers  conceded  to  be  genuine,  Mc- 
Corkle  v.  Binns,  5  Binn.  340  ;  Lancaster  v. 
Whitehill,  10  S.  &  R.  110;  or  concerning 
which  there  is  no  doubt.  Baker  v. 
Haines,  6  Whart.  284;  3  Greenl.  Ev. 
§  106,  n.  [A  paper  proposed  to  be  used 
as  a  standard,  cannot  be  proved  to  be 
an  original  and  a  genuine  signature, 
merely  by  tlie  opinion  of  a  witness  that 
it  is  so,  such  opinion  being  derived 
solely  from  his  general  knowledge  of  the 
handwriting  of  the  person  whose  signa- 
ture it  purported  to  be.  Commonwealth 
r.  Eastnuui,  1  Cush.  180,  217 ;  Martin  ('. 
Maguire,  7  Gray,  177 ;  Bacon  v.  Wil- 
liams, 13  Gray,  525.  But  an  expert  may 
testify,  whether  in  his  opinion  a  signature 
is  a  genuine  one  or  simulated,  although 
he  has  no  knowledge  of  the  handwriting 
of  the  party  whose  signature  it  is  claimed 
to  be.     Wiihee  v.  Rowe,  45  Maine,  571.] 


CHAP.  VI.] 


PRIVATE  WRITINGS. 


633 


beyond  this :  that  such  papers  can  be  offerd  in  evidence  to  the 
jury,  only  when  no  collateral  issue  can  be  raised  concerning 
them  ;  wliich  is  only  where  the  papers  are  either  conceded  to  be 
genuine,  or  are  such  as  the  other  party  is  estopped  to  deny ;  or 
are  papers  belonging  to  the  witness,  who  was  himself  previously 
acquainted  with  the  party's  handwriting,  and  who  exhibits  them 
in  confirmation  and  explanation  of  his  own  testimony.^ 

§  581  a.  Same  subject.  A  distinction,  however,  has  been  re- 
cently taken,  between  the  case  of  collateral  writings  offered  in 
evidence  to  prove  the  general  style  or  character  of  the  party's 


1  Smith  V.  Fenner,  1  Gall.  170,  175. 
See  also  Goldsmith  v.  Bane,  3  Halst.  87  ; 
Bank  of  Pennsylvania  v.  Haldemand,  1 
Penn.  161 ;  Greaves  v.  Hunter,  2  C.  &  P. 
447 ;  Clermont  v.  Tullidge,  4  C.  &  P. 
1 ;  Burr  v.  Harper,  Holt's  Gas.  420 ; 
Sharp  V.  Sharp,  2  Leigh,  249;  Baker  v. 
Haines,  6  Whart.  284;  Finch  v.  Gridley, 
25  Wend.  469 ;  Fogg  v.  Dennis,  3  Humph. 
47  [Depue  v.  Place,  7  Penn.  Law  Jour. 
289;  Commonwealths.  Eastman,  1  Cush. 
189  ;  Hicks  v.  Pearson,  19  Oiiio,  426.  A 
writing  made  in  the  presence  of  the 
court  and  jury  by  the  party  whose  sig- 
nature is  in  dispute  may  be  submitted  to 
the  jury,  for  the  purpose  of  comparison. 
Chandler  v.  Le  Barron,  45  Maine,  534. 
Though  upon  cross-examination  a  wit- 
ness may  be  required  to  make  his  sig- 
nature, for  the  purpose  of  comparing  it 
with  the  one  he  disputes  and  of  contra- 
dicting him,  he  has  no  right  to  make 
such  a  one  for  the  purpose  of  disproving 
the  genuineness  of  another,  and  to  sup- 
port ins  denial  of  its  genuineness.  Doe 
V.  Wilson,  10  Moo.  P.  C.  502  ;  Cobbett  v. 
Kilminster,  4  F.  &  F.  490;  King  v.  Don- 
ahoe,  110  Mass.  155.  In  determining  the 
question  of  the  authorship  of  a  writing, 
tlie  resemblance  of  the  characters  is  by  no 
means  the  only  test.  The  use  of  capitals, 
abbreviations,  punctuation,  mode  of 
dividing  into  paragraphs,  of  making 
erasures  and  interlineations,  idiomatic 
expressions,  orthography,  grammatical 
constructions,  style  of  composition,  and 
the  like,  are  all  elements  upon  which 
to  form  the  judgment.  The  Handwrit- 
ing of  Junius,  &c.,  by  Chabot.  At  the 
Greenwich  County  Court,  a  plaintiff 
denied  that  a  receipt  thus  worded,  "  Re- 
ceived the  Hole  of  the  above,"  was  in 
his  handwriting.  On  being  asked  to 
write  a  sentence  in  which  the  word 
"  whole  "  occurred,  he  wrote  it  "  Hole," 
and  then  ran  away  to  escape  a  prosecu- 
tion for  perjury.     Taylor,  £v.  §  1669,  n. 


A  press  copy,  and  duplicates  made  by  a 
copying  machine,  are  inadmissible  aa 
standards  of  comparison.  Commonwealth 
V.  Eastman,  1  Cush.  (Mass.)  189.]  A  press 
copy  of  a  letter  might  furnish  a  very 
unsatisfactory  standard  of  comparison 
by  which  to  determine  whether  another 
paper,  the  handwriting  of  which  was  in 
controversy,  was  written  by  the  same 
person ;  but,  although  incompetent  as  a 
means  of  comparison,  by  which  to  judge 
of  the  characteristics  of  a  handwriting 
which  is  in  dispute,  it  might  still  retain 
enough  of  its  original  character  to  be 
identified  by  a  witness,  when  its  own 
genuineness  was  called  in  question. 
Bigelow,  C.  J.,  in  Commonwealth  v. 
Jeffries,  7  Allen,  562.  [A  photographic 
copy  of  a  pay-roll  is  not  admissible  from 
which  to  prove  its  forgery,  when  the  origi- 
nal is  procurable.  Blatchford,  J.,  in  U.  S. 
V.  Messman,  U.  S.  D.  C.  So.  Dist.  N.  Y., 
February,  1874.  But  in  Tichborne's  case, 
photographs  of  letters  and  documents 
were  used  in  facilitating  the  compari- 
son of  handwriting,  for  the  purpose  of 
identifying  the  writer;  and  this  would 
seem  to  be  the  better  law.  Photographs 
are  not  strictly  copies,  but  rather  fac- 
similes. Magnified  copies  were  admitted 
in  Marcy  v.  Barnes,  16  Gray  (Mass.),  161. 
In  Tome  v.  Parkersburg  Br.  R.  R.  Co., 
photographs  of  genuine  and  forged  sig- 
natures were  offered,  but  rejected,  not  on 
the  ground  that  they  were  photographs, 
but  on  the  ground  that  the  genuineness 
of  a  signature  could  not  be  proved  by  a 
comparison  of  two  writings.  39  Md.  36. 
Photographs  sometimes  differ  from  the 
originals,  and  clocks  may  be  out  of  time; 
but  the  presumption  is  that  such  ma- 
chines and  instruments  work  correctly. 
Taylor,  Ev.  §  148  n,-  Church  v.  City  of  Mil- 
waukee,  31  Wis.  512;  Udderzook's  case, 
76  Penn.  St.  340;  Blair  v.  Pelham,  113 
Mass.  420;  ante,  §  139.] 


634 


LAW   OF  EVIDENCE. 


[part  in. 


autograph,  and  of  similar  writings,  wlien  offered  to  prove  a  pecul- 
iar mode  of  spelling  another  person's  name,  or  other  words,  in 
order  to  show  from  this  fact  that  the  principal  writing  was  his 
own.  Thus,  where,  to  an  action  for  a  libel,  the  defendant 
pleaded  that  the  plaintiff  had  sent  to  him  a  libellous  letter,  and, 
to  prove  this,  gave  in  evidence  the  envelope,  in  which  the  defend- 
ant's name  was  spelt  with  a  superfluous  f,  and  then  offered  in 
evidence  some  other  letters  of  the  plaintiff,  in  which  he  had  spelt 
the  defendant's  name  in  the  same  peculiar  manner  ;  which  last- 
mentioned  letters  Patteson,  J.,  rejected;  it  was  held,  that  the 
rejection  was  wrong,  and  that  the  letters  were  admissible.^ 

§  582.  Secondary  evidence,  when  admissible.  Where  the  SOUrces 
of  primary  evidence  of  a  written  instrument  are  exhausted,  see- 
ondary  evidence,  as  we  have  elsewhere  shown,  is  admissible  ;  but 
whether,  in  this  species  of  evidence,  any  degrees  are  recognized 
as  of  binding  force,  is  not  perfectly  agreed  ;  but  the  better  opin- 
ion seems  to  be,  that,  generally  speaking,  there  are  none.  But 
this  rule,  with  its  exceptions,  having  been  previously  discussed, 
it  is  not  necessary  here  to  pursue  the  subject  any  further.^ 


1  Brookes  v.  Tichbome,  14  Jur.  1122 ; 
2  Eng.  Law  &  Eq.  374.  In  this  case, 
Parke,  B.,  after  stating  the  case,  ob- 
served as  follows:  "On  showing  cause, 
it  was  hardly  disputed  that,  if  the  habit 
at  the  plaintiff  so  to  spell  the  word  was 
proved,  it  was  not  some  evidence  against 
the  plaintiff,  to  show  that  he  wrote  the 
libel ;  indeed  we  think  that  proposition 
cannot  be  disputed,  the  value  of  such 
evidence  depending  on  the  degree  of 
pecuUarity  in  the  mode  of  spelling,  and 
the  number  of  occasions  in  which  the 
plaintiff  had  used  it ;  but  it  was  objected, 
that  the  mode  of  proof  of  that  habit  was 
improper,  and  that  the  habit  should  be 
proved  as  the  character  of  handwriting, 
not  by  producing  one  or  more  specimens 
and  comparing  them,  but  by  some  wit- 
ness who  was  acquainted  with  it,,  from 
having  seen  the  party  write,  or  corre- 
sponding with  him.  Hut  we  think  this 
is  not  like  the  case  of  general  style  or 
character  of  luuidwriting;  the  object  is 
not  to  show  similarity  of  the  form  of  the 
letters  and  the  mode  of  writing  of  a  par- 
ticular word,  but  to  prove  a  peculiar 
mode  of  spelling  words,  which  might  be 
evidenced  by  the  plaintiff  having  orally 
spelt  it  in  a  different  way,  or  written  it 
in  that  way,  once  or  oftener,  in  any  sort 
of  character,  the  more  frequently  the 
greater  the  value  of  the  evidence.    For 


that  purpose,  one  or  more  specimens 
written  by  him,  with  that  peculiar  or- 
thography, would  be  admissible.  We 
are  of  opinion,  therefore,  that  this  evi- 
dence ought  to  have  been  received,  and, 
not  having  been  received,  the  rule  for  a 
new  trial  must  be  made  absolute."  In 
Jackson  v.  Phillips,  9  Cowen,  94,  where 
the  facts  were  of  a  similar  character,  the 
collateral  deed  was  offered  and  rejected, 
on  tlie  sole  ground  of  comparison  of 
hands ;  the  distinction  in  the  text  not 
having  been  taken  or  alluded  to. 

2  Supra,  §  84,  note  (2) ;  Doe  v.  Ross, 
7  M.  &  W.  102;  s.  c.  8  Dowl.  389. 
[Taylor,  Ev.  §  49-5,  states  the  rule  now  to 
be  in  England,  "  that  the  law  recognizes 
no  degrees  in  the  various  kinds  of  such 
evidence,"  and  that  if  a  paper,  whether 
it  be  a  will  or  deed,  be  lost,  or  in  the 
hands  of  the  adversary,  who,  after 
notice,  refuses  to  produce,  the  party  giv- 
ing the  notice  may  at  once  have  re- 
course to  parol  testimony,  though  it  ap- 
pear that  he  has  in  his  possession  a 
counterpart,  a  copy,  or  an  abstract  of 
the  document,  citing  Hall  v.  Ball,  3  M.  & 
G.  242;  Brown  v.  Woodman,  6  C.  &  P. 
20G;  Jeans  v.  Whendon,  2  M.  &  R.  486; 
Brown  i'.  Brown,  27  L.  J.  (Q.  B.)  173; 
Quick  V.  Quick,  33  L.J.  (P.  &  M.)  14G; 
Johnson  v.  Lyford,  37  L.  J.  (P.  &  M.) 
Go.] 


CHAP.  YI.] 


PEIVATE   WRITINGS. 


635 


§  583.  Effect  of  private  writings.  The  effect  of  private  writings, 
when  offered  in  evidence,  has  been  incidentally  considered,  under 
various  heads,  in  the  preceding  pages,  so  far  as  it  is  established 
and  governed  by  any  rules  of  law.  The  rest  belongs  to  the  jury, 
into  whose  province  it  is  not  intended  here,  to  intrude. 

§  584.  Conclusion.  Having  thus  completed  the  original  design 
of  this  volume,  in  a  view  of  the  principles  and  rules  of  the  law 
of  evidence,  understood  to  be  common  to  all  the  United  States, 
this  part  of  the  work  is  here  properly  brought  to  a  close.  The 
student  will  not  fail  to  observe  the  symmetry  and  beaut}^  of  this 
branch  of  the  law,  under  whatever  disadvantages  it  may  labor 
from  the  manner  of  treatment ;  and  will  rise  from  the  study  of 
its  principles,  convinced,  with  Lord  Erskine,  that  "  they  are 
founded  in  the  charities  of  religion  —  in  the  philosophy  of  nature 
—  in  the  truths  of  history  —  and  in  the  experience  of  common 
life."i 


1  24  Howell's  St.  Tr.  966.  [It  may  be 
convenient  here  to  advert  to  six  practical 
rules  of  some  importance,  all  of  which 
will  be  found  ajjplicable  to  evidence  of 
every  description.  First,  where  evi- 
dence is  offered  for  a  particular  purpose, 
and  an  objection  is  taken  to  its  admissi- 
bilitj'  for  that  purpose,  if  the  court  pro- 
nounces in  favor  of  its  general  admissi- 
bility in  the  cause,  a  court  of  error,  on 
exceptions  taken  (a  bill  of  exceptions 
cannot  be  tendered  on  a  criminal  trial, 
R.  V.  Esdaile,  1  Fost.  &  Fin.  213,  228,  per 
Ld.  Campbell),  will  support  the  decision 
of  the  court  below,  provided  the  evi- 
dence be  admissible  for  anii  purpose. 
The  Irish  Society  v.  Bp.  of  Derry,  12 
CI.  &  Fin.  641,  665.  The  proper  course 
for  the  opposing  counsel  to  take  in  such 
a  case  would  seem  to  be,  to  call  upon  tlie 
judge  to  explain  to  tlie  jury,  that  the  evi- 
dence, though  generally  admissible  in 
the  cause,  furnishes  no  proof  of  the  par- 
ticular fact  in  question  ;  and  then,  should 
the  judge  refuse  to  do  so,  his  direction 
might  be  the  subject  of  a  distinct  excep- 
tion, or  an  application  might  be  made  to 
the  court  above  for  a  new  trial  on  the 
ground  of  misdirection.  Id.  672-674, 
per  Ld.  Brougham.  Secondly,  where  in- 
admissible evidence  is  received  at  the 
trial  without  objection,  the  opposite  parly 
cannot  afterwards  object  to  its  having 
been  received,  Reed  v.  Lamb,  29  L.  J. 
Ex.  452;  s.  c.  6  H.  &  N.  75;  or  obtain  a 
new  trial  on  the  ground  that  the  judge 
did  not  expressly  warn  tlie  jury  to  place 
no  reliance  upon  it,  Goslin  v.   Corry,  7 


M.  &  Gr.  342  ;  Doe  ;;.  Benjamin,  9  A.  &  E. 
644.  Thirdly,  where  evidence  is  objected 
to  at  the  trial,  the  nature  of  the  objections 
must  be  distinctlj"  stated,  whether  a  bill 
of  exceptions  be  tendered  or  not ;  and,  on 
either  moving  for  a  new  trial  on  account 
of  its  improper  admission,  or  on  arguing 
the  exceptions,  the  counsel  will  not  be 
permitted  to  rely  on  any  other  objections 
than  those  taken  at  Nisi  Prius.  Wil- 
liams V.  Wilcox,  8  A.  &  E.  314,  337 ;  Fer- 
rand  v.  Milligan,  7  Q.  B.  730;  Bain  v. 
Whitehaven  &  Furness  Junct.  Rv.  Co., 
3  H.  of  L.  Cas.  1,  15-17,  per  Ld.  Broug- 
ham. Fourthly,  where  evidence  is  ten- 
dered at  the  trial  on  an  untenable  ground, 
and  is  consequently  rejected,  the  court 
will  not  grant  a  new  trial  merely  because 
it  has  since  been  discovered  tiiat  the  evi- 
dence was  admissible  on  another  ground ; 
but  the  party  must  go  much  further,  and 
show,  first,  that  he  could  not  by  due  dili- 
gence have  offered  the  evidence  on  the 
proper  ground  at  tiie  trial,  and,  next,  that 
manifest  injustice  will  ensue  from  its  re- 
jection. His  position,  at  the  best,  is  that 
of  a  party  who  has  discovered  fresli  evi- 
dence since  tiie  trial.  Doe  v.  Beviss,  18 
L.  J.  C.  P.  128;  s.  c.  7  Com.  B.  456. 
Fifthly,  where  evidence  is  rejected  at  the 
trial,  the  party  proposing  it  should 
formally  tender  it  to  the  judge,  and  request 
him  to  make  a  note  of  the  fact ;  and,  if 
this  request  be  refused,  he  should  then 
tender  a  bill  of  exceptions.  If  this 
course  has  not  been  pursued,  and  the 
judge  has  no  note  on  the  subject,  the 
counsel  cannot  afterwards   complain  of 


636 


LAW   OF  EVIDENCE. 


[PABT  m. 


the  rejection  of  the  evidence.  Gibbs  v. 
Pike,  y  M.  &  W.  351,  360,  361 ;  White- 
house  V.  Hemmant,  27  L.  J.  Ex.  295; 
Penn  v.  Bibby,  36  L.  J.  Ch.  455,  461,  per 
Ld.  Chehnsford,  Ch.  Lastly,  where  evi- 
dence has  been  improperly  admitted  or 
rejected  at  Nisi  Prius,  the  court  will 
grant  a  new  trial,  unless  it  be  clear 
beyond  all  doubt  that  the  error  of  the 
judge  could  have  had  no  possible  effect 
iipon  the  verdict,  in  which  case  they  will 
not  enable  the  defeated  party  to  protract 
the  htigation.  Wriglit  i;.  Doe  d.  Tat- 
ham,  7  A.  &  E.  380 ;  Baron  de  Rutzen  v. 
Farr,  4  A.  &  E.  53,  57  ;  Crease  v.  Barrett, 
1  C.  M.  &  R.  919,  933;  Doe  v.  Langfield, 


16  M.  &  W.  497.  These  cases  overrule 
Doe  V.  Tyler,  6  Bing.  561 ;  s.  c.  4  M.  &  P. 
377;  a  dictum  of  Ld.  Tenterden  in 
Tyrwhitt  v.  Wynne,  2  B.  &  A.  559 ;  and 
one  by  Sir  J.  Mansfield  in  Horford  v. 
Wilson,  1  Taunt.  14.  See  Mortimer 
V.  M'Callan,  6  M.  &  W.  75;  Edwards  v. 
Evans,  3  East,  451.  It  may  further  be 
stated,  that  the  wrongful  reception  of 
evidence  will  not  furnish  less  available 
ground  for  a  new  trial,  although  the  jury 
accompany  their  verdict  with  a  distinct 
and  positive  statement  that  they  have 
arrived  at  it  independently  of  the  obnox- 
ious evidence.  Bailey  v.  Haines,  19  L.  J. 
Q.  B.  73,  78;  Taylor's  Ev.  §§  1681,1682.] 


INDEX. 


A. 

ABDUCTIOX,                                                                                                          Section 
wife  competent  to  prove ^^'^ 

ABSENT   WITNESS, 

testimony  of 1^^'  "' 

ACCEPTANCE   AND   INDORSEMENT, 

not  explicable  by  parol -(6,  «. 

ACCESS, 

when  presumed 

{See  NoN-AcCESS.) 

ACCESSORY, 

not  a  competent  witness  for  the  principal 407 

ACCIDENT,   FRAUD,   AND  MISTAKE, 

parol  evidence  to  correct -9"  '^ 

ACCOMPLICE, 

when  acts  of  one  evidence  against  another Ill,"- 

may  be  convicted  on  his  own  confession,  if  he  refuse  to  testify,  219  n., 
^  379 

who  is,  question  for  the  court •    380,  n. 

by  becoming  witness,  waives  privileges 451  n.,  451 

when  admissible  as  witnesses 379-38- 

apparent '^°-' 

who  are  corroborative  of 380-38- 

{See  Witnesses.) 

ACCOUNT, 

rendered,  effect  of,  as  an  admission — ^- 

ACCOUNTS, 

voluminous,  secondary  evidence  of 93,  436  n.,  439  n. 

ACKNOWLEDGMENT, 

limitations,  joint  debtor 112  n.,  17-1  ?k 

of  pajTnent  by  receipt '^^■' 

certificate  of,  whether  impeachable  by  parol 276,  n. 

of  deed,  force  and  effect  of 573,  n, 

ACQUIESCENCE, 

what  is,  so  as  to  bind  the  party 197, 198 

ACQUITTAL,  ^ 

record  of,  when  evidence ^°^ 


638  INDEX. 

ACT, 

public  what 5,  n. 

ACTION  OF   CRTM.    CON., 

letters  of  wife  to  husband  inadmissible 102 

ACTS, 

book  of,  when  evidence 519 

evidence  not  hearsay 102 

proof  of  authority ■ 83 

ACTS   OF   PARTIES, 

when  admissible  to  explain  writings 293,  295 

ACTS  OF   STATE,     (See  Public  Records  and  Documents.) 

how  proved 479,  487,  n. 

ADJUSTMENT   OF  LOSS, 

when  and  how  far  conclusive 212 

(^ee  Admissions.) 
ADMINISTRATION, 

letters  of,  how  proved 519 

jorma /acie  evidence  of  death 41,  550 

foreign,  effect  of 544 

ADMINISTRATOR, 

competency  of,  as  a  witness 347,  402 

admissions  by 179 

promise  by,  when  it  must  be  in  writing 267 

sales  by,  presumed  regular 20 

ADMIRALTY, 

com-ts  of  and  seals,  judicially  noticed       ........      5,  479 

judgments,  when  and  how  far  conclusive 525,  541 

ADMISSIONS, 

of  contents  of  a  writing,  when  not  sufficient 96 

distinction  between  con/essi'o ywm  and  con/essioyacrf  .     .     .     .    96,203 

by  agents,  when  binding  on  principal 113,  114 

what  and  when  receivable 169,  170 

in  chancery 169,  n. 

made  by  a  party  to  the  record 171 

party  in  interest 172 

one  of  joint  parties 112,  172 

party  merely  nominal,  excluded 172 

how  avoided,  if  pleaded      .     .     •     173 
one  of  several  parties,  not  receivable  unless  a  joint  in- 
terest      .     174 

rated  parishioner 275 

quasi  corporators l''<^ 

one  of  several  parties,  common  interest  not  sufficient, 

unless  also  joint 176 

apparently  joint,  is  jarima/acj'e  sufficient 177 

answer  in  chanceiy  of  one  defendant,  when  receivable 

against  others ^'^^ 

persons  acting  in  outer  droit,  when  receivable      176  n.,  179, 180 

guardian,  &c.,  binds  himself  only 179 

party  interested 180 


INDEX.  639 

AD]\nSSIONS,—  Con/m»/eJ. 

made  by  strangers,  when  receivable 181 

persons  referred  to,  whether  conclusive 183,  184 

wife,  when  admissible  against  husband     .     .     .      185,  3-41,  n. 

attorney 186 

principal,  as  against  surety 187,  188 

one  in  privity  with  another 189,190 

assignor,  before  assignment 190 

by  attorney  when  binding  on  client ISO 

executor 179 

parisliioner 179 

infant  in  suit  after  majority 171,??. 

answers  to  interrogatories 171,  n. 

part  pajanent,  limitations 174  n. 

son  in  action  brought  by  father ISO,  n. 

interpreter 187 

reference  and  award 182 

tenant  against  landlord 189 

conduct,  assumed  character,  silence 195-197 

answer  to  interrogatory  filed  in  suit ' .     .     .     .     552 

use  of  deposition  of  another 553 

of  cestui  que  trust ISO 

by  bankrupt,  in  examination,  not  admissible 226 

by  omission  from  schedule  of  debts 196 

intestate,  binding  upon  administrator 189 

proechein  amy ., 179 

of  deputy  against  sheriff 180 

by  persons  afterwards  interested      .     .     .' 179,180 

coexecutor  and  administrator 189 

whom  they  may  be  proved 191 

time  and  circumstances  of  making  the  admission 192 

offer  of  compromise  is  not  an  admission 192 

made  under  duress 193 

competent,  of  contents  of  writing 203,  n. 

not  rebutted  by  proof  of  different  statements 209,  n. 

on  oath,  when  conclusive 210 

not  rebutted  by  proof  of  different  statements 209,  n. 

direct  and  incidental  admissions,  same  in  effect 194 

implied  from  assumed  character,  language,  and  conduct      .       195,  196 

acquiescence,  when 197,  197  a 

possession  of  documents 198 

implied  assent  to  the  verbal  statements  of  another 199 

verbal  to  be  received  with  great  caution 45,  200 

whole  to  be  taken  together 201,  202 

verbal  receivable  only  to  facts  provable  by  parol 96,  203 

when  and  how  far  conclusive 204 

judicial  admissions,  how  far  conclusive     ....    27,  186,  205,  527  a 
if  improvidently  made,  what  remedy    .     .     .     206 

by  payment  into  court 205 

acted  upon  by  others,  when  and  how  far  conclusive    .     .      27,  207,  208 


640  INDEX. 

ADMISSIONS,  —  Continued. 

of  principal  as  against  surety 187 

not  acted  upon,  not  conclusive 209 

when  held  conclusive,  fi-om  public  policy 210,  211 

by  receipts 21-, 

by  adjustment  of  a  loss -1- 

omission  from  bankrupt's  schedule  of  creditors 196 

by  account  rendered 212 

in  bill  m  equity -J-- 

ADMISSIBILITY, 

relevancy,  the  test  of 49  n.,  462  n. 

ADULTERY, 

one  act  of,  how  far  proof  of  another 53 

provable  by  confession  in  divorce  case 217 

ADVERSE  EXJ0Y:\IENT, 

presimiption  from 1" 

when  it  constitutes  title 1' 

AFFIDAVIT, 

ex  parte,  admissible,  when 104,  n. 

may  be  made  in  his  own  case,  by  atheist 370,  n. 

persons  infamous 375 

other  parties  ....    348,  349,  558 

wife 344 

observations  on  value  of 462,  n. 

AFFIRMATION, 

judicial,  when  substituted  for  an  oath 371 

AFFIRMATIVE,  (See  Oxus  Probandi.) 

AGE, 

proof  of 104,  116,  440  n.,  493 

AGENT, 

auctioneers,  of  both  parties 260 

presumption  in  favor  of  authority  of 21 

■when  and  how  far  his  declarations  bind  the  principal      .     .     .  113,  234 
when  a  competent  witness  for  the  principal,  and  when  not  .     .416,  417 
(See  Witnesses.) 

may  prove  his  own  authority,  if  parol 416 

when  his  authority  must  be  in  writing 269 

AGREEMENT,  (See  Contract.) 

ALLEGATIONS,  (See  Onus  Probandi.) 

and  proof  must  correspond 51 

how  proved '°'  '^ 

negative,  burden  of  proof  of ^0 

material 51 

exclude  collateral  facts 52 

what  are  collateral  facts 53 

when  character  is  material 54,  55 

descriptive,  nature  of 56-58 

formal  and  informal,  what 59 

made  descriptive  by  the  mode  of  statement 60 

of  time,  place,  quantity,  &c.,  when  descriptive 61,  62 


INDEX.  G41 

ALLEGATIONS,  — Co7itinued. 

redundant 67 

difference  between  these  and  redundancy  of  proof    .     .       68 
"immaterial,"  "impertinent,"  and 

"unnecessary" 60,  n. 

ALIBI,  (See  Private  Writings.) 

bu.rden  of  proof  of 81  c 

ALTERATION, 

erasures  and  interlineations 564-568  a 

of  wi'itten  contracts  by  oral  agreements 302 

of  instruments,  what,  and  effect  of 561-568 

presumption  as  to  time  of 565 

distinguished  from  spoliation 566 

immaterial  need  not  be  explained 564  n.,  567 

burden  of  proof  as  to 564,  n. 

AMBIGUITIES, 

latent  and  patent,  what 297-300 

when  parol  evidence  admissible  to  explain 297-300 

not  to  be  confounded  with  inaccuracies 299 

AMENDMENT, 

allowed,  to  avoid  the  consequences  of  a  variance 73 

ANCIENT  WRITINGS, 

when  admissible  without  proof  of  execution      .     .     .  21,  142-144,  570 

rights  provable  by  hearsay 130 

possessions  provable  by  hearsay 141-146 

boundaries  provable  by  hearsay 145,  n. 

documents,  presumptions  in  favor  of 21,  143,  144,  570 

books  of  town-officers,  taxes 150,  n. 

ANSWER, 

to  interrogatory,  admission  by 552,  n. 

of  one  defendant  in  chancery,  when  admissible  against  the  other  .     178 

in  chancery  whether  conclusive 210 

what  amount  of  evidence  necessary  to  disprove 260,  261 

admissible  for  defendant,  why 351,  551 

proof  of 512 

APPEARANCES, 

provable  by  opinion 440,  n. 

APPOINTMENT  TO  OFFICE, 

when  proved  by  acting  in  it 83-92 

when  proved  by  parol 92 

APPRENTICESHIP, 

contract  of,  must  be  in  writing 274 

ARBITRATORS, 

not  bound  to  disclose  grounds  of  award 249 

ARMORIAL  BEARINGS, 

when  evidence  of  pedigree 105,  n. 

ARREST, 

exemption  from,  (See  Witnesses.) 316 

ART, 

processes  of,  and  science,  judicially  noticed 6  a,  n. 

VOL.  I.  41 


642  INDEX. 

ARTICLES  OF  THE  PEACE, 

by  wife  against  husband 343 

ARTICLES  OF  WAR,      (See  Acts  of  State.) 449 

ASSAULT  AND  BATTERY, 

of  wife,  by  husband <     .     343 

ASSESSMENT  BOOKS, 

admissibility  and  effect  of 493 

ASSIGNOR, 

admissions  by 190 

ASSIGNMENT, 

of  choses  in  action • 173 

ASSUMPSIT,  (See  Contract.) 

action  of,  when  barred  by  prior  recovery  in  tort 532 

ATHEISTS, 

incompetent  witnesses 368-372 

(See  Witnesses.) 
ATTACHMENT, 

for  contempt 319 

ATTENDANCE  OF  WITNESSES, 

how  procured 309-319 

(See  Witnesses.) 
ATTESTATION  OF  COPIES, 

mode  of 506 

ATTESTING  WITNESSES, 

who  are       ...  569 

declarations  of  deceased  witnesses  rejected,  why 126 

character  of,  impeachable 126,  n. 

when  not  required 571,  572 

(See  Private  Writings.) 
ATTORNEY, 

may  prove  client's  handwriting 242 

when  his  admissions  bind  his  client 186 

whether  a.  competent  witness 864,  386 

(See  Privileged  Communications.) 
AUCTIONEER, 

is  agent  of  both  buyer  and  seller 269 

AVER:MENT,     (See  Allegations.) 51-60  n. 

AWARD, 

arbitrators  not  bound  to  disclose  grounds  of 249 

generally  conclusive 183  n.,  184 

B. 
BAIL, 

how  rendered  a  competent  witness  for  principal 430 

(See  Witnesses.) 
BAILOR, 

when  a  competent  witness 348 

BANK, 

books  of 474-493 

(See  Public  Records  and  Documents.) 


INDEX.  <343 

BANK  BILL, 

holder  not  bound  to  explain  possession 81a 

BANKRUPT, 

admission  by  omission  of  debt  from  schedule 106 

when  competent  as  a  witness 392 

BANKRUPTCY, 

effect  of  discharge  by,  to  restore  competency 430 

examination  in,  no  admission  by  bankrupt 226 

BAPTISM, 

proof  of  .    . 115,  n. 

register  of 4:98 

BARON  AND  FEME,    (See  Husband  and  Wife.) 
BASTARDY, 

cross-examination  of  complainant 458,  n. 

BEGINNING  AND   REPLY, 

■who  are  entitled  to 75 

whether  affected  by  proof  of  damages 75,  76 

BELIEF, 

grounds  of 7-1- 

how  far  admissible 440 

of  handwi'iting 57o 

religious,  presumed 370 

(See  Experts,  Witnesses.) 
BENTHAM,  JEREMY, 

character  of  his  legal  writings 435,  n. 

BEST   EVIDENCE, 

defined 82 

BIBLE, 

family  record  in,  when  evidence 104 

BIGAMY, 

proof  of,  by  second  wife 339 

BILL  IN  EQUITY, 

how  far  its  statements  are  evidence  against  plaintiff 212 

BILL  OF  EXCHANGE, 

parties  to,  when  incompetent  to  impeach 383-385 

(  See  Witnesses.  ) 
BILL  OF  PARCELS, 

may  be  explained  by  parol 305   a. 

BILL  OF  SALE, 

absolute,  may  be  shown  to  have  been  conditional  by  parol  .     .    284,  n. 
BIRTH, 

proof  of 104,  115  n.,  116,  493 

BIRTHPLACE, 

not  provable  by  common  repute 104 

BISHOP'S   REGISTER, 

inspection  of ^'* 

natureof 483,484 

(See  Public  Books.) 

BLANK, 

in  an  instrument,  when  and  by  whom  it  may  be  filled,     567,  568.  568  a 


644  INDEX. 

BOXA   FIDES, 

question  for  jury 49,  n. 

BOND, 

absolute,  may  be  shown  by  parol  to  be  conditional     ....    284,  n. 

consideration  for  presumed 19 

office,  how  proved 573 

(5ee  Private  Writings.) 

BOOK  CHARGES, 

evidence  of  what 118 

BOOKS, 

of  science,  not  admissible  in  evidence 4-4,  n. 

shop,  when  and  how  far  admissible  in  evidence       ....       117,  118 
of  thii-d  persons,  when  and  why  admissible    .     .     .       115-220,151-154 

of  custom-house,  inspection  of 475 

of  deceased  rectors 155 

(  See  Hearsay.  ) 

office  books,  corporation  books,  &c.. 474-476,493-495 

(  See  Public  Records  and  Documents.) 

BOUNDARY, 

surveyor's  marks  provable  by  parol 94 

judicially  noticed,  when 6  a 

ancient  provable  by  hearsay 139  n.,  145  n. 

parish,  proof  of 1*9 

when  provable  by  reputation 145,  n. 

rules  of  construction  as  to 301,  n. 

BURDEN  OF  PROOF 74-81 

as  to  alteration 564,  n. 

{See  Onus  Probandi.) 

BUSINESS, 

usual  course  of,  presumption  from 38,  40 


CALENDAR, 

prison  proves  commitment ••    493 

CANCELLATION, 

of  deed,  effect  of 265,  568 

of  will 268 

CANON  LAW, 

rules  of 260  a,  n. 

CAPACITY, 

and  discretion,  presumed 28,  367 

CARE, 

and  negligence,  generally  for  jury 49,  n. 

CARRIER,    • 

when  admissible  as  a  witness 416 

CERTAINTY, 

degi-ee  of,  requisite  in  testimony '140 

CERTIFICATES, 

of  Secretary  of  State,  proof  by 479 


INDEX.  645 

CERTIFICATES,—  Con/ZnucJ. 

of  contents  of  record,  inadmissible 485,  498,  514  n. 

by  public  officers,  in  what  cases  admissible 485,  498 

CERTIORARI, 

to  remove  records 502 

CESTUI  QUE  TRUST, 

^\  hen  his  admissions  are  evidence  against  his  trustee 180 

CHANCERY,     {See  the  particular  titles  of  Bill,  Answer,  Depo- 
sitions, and  other  proceedings  in  Chancery.) 
CHARACTER, 

best  evidence  of 5o,  n. 

not  provable  by  particular  acts 55 

of  horse  may  be  proved  by  particular  acts 55,  n. 

not  admissible  to  impeach  credit  of  entries  in  shop  books     .     .    118,  n. 

admissible  to  impeach  attesting  witness 126,  n, 

when  it  is  relevant  to  the  issue 54,  55 

when  provable  in  support  of  witness 469 

defined "4,  n. 

always  relevant  when  jurors  assess  the  fines 54 

CHILDREN, 

competency  of,  as  witnesses r     •     •     ^^^ 

CHOSE   IN  ACTION, 

not  assignable  when 173,  n. 

CIRCUMSTANCES, 

proof  of,  in  criminal  cases 13  a,  n. 

force  of 13  a,  n. 

CIRCUMSTANTIAL  EVIDENCE 13,  13  a 

{See  Evidence,  Presumptiox.) 
CITIZENSHIP, 

immaterial  as  to  effect  of  foreign  judgment .     519 

CLERGYMEN, 

generally  bound  to  disclose  confessions  made  to  them      .     .     .  229,  247 
CLERK, 

of  attorney,  when  not  compellable  to  testify 239 

COERCION, 

of  wife  by  husband,  when  presumed 28 

COHABITATION, 

as  ground  of  liability  of  husband  for  goods  sold  the  alleged  wife  .     207 

when  presumptive  evidence  of  legitimacy  of  issue 82 

COINCIDENCES, 

as  ground  of  belief •     •       12 

COLLATERAL  FACTS, 

what  and  when  excluded 52,  443,  459 

COLLATERAL  WRITINGS, 

provable  by  parol 89 

COLOR, 

when  a  material  averment G5 

COMITY, 

international,  presumed 43 

COMMISSION, 

to  take  testimony 320 


646  IKDEX. 

COIVBIOI^'  REPUTE, 

evidence  of  relationship 103,  n. 

and  death 104,  n. 

COIkEVIITMENT, 

proved  by  calendar 493 

COMMON, 

customaiy  right  of,  provable  by  reputation  .     .      128,  131,  137  ;i  ,  405 

COIkOIONER, 

when  a  competent  witness 505 

COMMUNICATIONS, 

privileged 237-245 

COMPARISON  OF  HANDWRITINGS 576-581 

(^See  Private  Writings.) 

COIMPETENCY, 

of  witness,  how  restored 430 

of  creditor,  as  witness 392 

of  defaulted  co-defendant 355-357 

of  corporator 430 

when  to  be  objected 421 

COMPLAINT, 

recenti  facto,  not  hearsay 102 

co:mpromise, 

offer  of,  not  an  admission 192 

concubinage, 

not  provable  by  reputation 107,  n. 

condemnation, 

as  prize 541 

confession  of  guilt, 

difference  between  co7?/essio  yum  and  con/ess Joyhcij 96 

direct  and  indirect 213 

improperly  obtained,  admissible 193 

to  be  received  with  great  caution 214 

weight  of  for  jury 214 

to  clergymen  not  privileged 229,  247 

judicial,  conclusive 216 

extrajudicial,  not  conclusive,  without  corroborating  proof    .     .     .     217 

the  whole  to  be  taken  together 218 

must  be  voluntary 219,  220 

influence  of  inducements  previously  offered  must  have  ceased  .   221, 

222 

presumed  to  continue 221,  n. 

after  inducement,  and  after  caution  from  the  court 257  a 

made  under  inducements  offered  by  officers  and  magistrates     .     .     222 

private  persons    .     .     .  193  n. ,  223 

during  official  examination  by  magistrate 224-227 

what  inducements  do  not  render  inadmissible 229 

by  drunken  persons  admissible 229 

made  under  illegal  restraint,  whether  admissible 230 

■when  property  discovered,  in  consequence  of 231 

produced  by  person  confessing  guilt 232 


INDEX.  647 

CONFESSION   OF   GVILT,  — Continued. 

by  one  of  several  jointly  guilty 233 

by  agent *'"^* 

in  case  of  treason,  its  effect 23o 

COXFIDEXTIAL  CO:\BIUNICATIONS, 

telegraphic  messages  not 249,  n. 

not  generally  privileged,  unless  in  certain  cases 237,  248 

(See  Evidence.     Pkivileged  Commuxicatioxs.) 

CONFIRMATION, 

of  testimony  of  accomplices  when  required 380-382 

CONSENT, 

when  implied  from  silence 197-199 

CONSIDERATION, 

failure  of,  he  who  alleges  must  prove 81 

whether  required  in  writing  under  Statute  of  Frauds      .     .     .    268,  n. 

want  of,  provable  by  parol 284,  304 

for  specialty,  presumed 19 

when  the  recital  of  payment  of,  may  be  denied 26 

when  it  must  be  stated  and  proved 66-68 

when  a  further  consideration  may  be  proved 285,  304 

CONSOLIDATION  RULE, 

party  to,  incompetent  as  a  witness 395 

CONSPIRACY, 

conspirators  bound  by  each  other's  acts  and  declarations     ...     Ill 

conspirators,  declarations  of  other Ill 

generally  not  competent  witnesses  for  each  other 407 

CONSPIRATOR, 

flight  of  one  no  evidence  against  another .     233 

CONSTABLE, 

confessions  made  under  inducements  by,  inadmissible    ....     222 

CONSTRUCTION, 

when  for  court,  and  when  for  jury 49  n.,  277  n. 

defined -' ' 

rules  of 287  n. 

CONTEMPT, 

attachment  for 319 

in  arresting  a  witness,  or  preventing  his  attendance 316 

CONTINUANCE, 

presumption  of 41 

CONTRACT, 

when  presumed 47 

is  an  entire  thing,  and  must  be  proved  as  laid 66 

what  is  matter  of  description  in 66-G8 

parol  evidence  to  reform 296  a 

apply  to  its  subject 301 

prove  discharge  of 302,  304 

substitution 303,  304 

time  of  performance 304 

CONTRADICTORY   STATEMENTS, 

when  proof  of,  admissible 462 


648  INDEX. 

COIjrVEYANCE, 

of  legal  estate,  when  presumed 46 

CONVEYANCER, 

communications  to,  privileged 241 

CONVICTION,  (See  Witnesses.) 

record  of,  is  the  only  proper  evidence 374,  375 

how  procured ^^' 

COPY, 

proof  by,  when  aUowed    ....     91,  479-490,  513-520,  559,  571  n. 

office,  what  and  how  far  evidence 507 

by  machines,  admissible 558,  n. 

of  a  copy,  admissible  when 558,  n. 

examined ^0° 

(See    Public    Records    and    Documents.      Records    and 
Judicial  Writings.) 
COPIES, 

who  may  give ^°^ 

three  kinds  of ^01 

may  be  used  to  refresh  recollection 438,  n. 

how  obtainable 471 

attested,  of  records,  proof  of 505 

examined,  of  records,  proof  of 508 

CORPORATIONS, 

books  of 493 

their  several  kinds  and  natures 331-333 

shares  in,  are  personal  estate 2<0 

CORPORATOR, 

when  admissible  as  a  witness 331-333 

(See  Witnesses.) 

admissions  by • 1' 5>  "• 

CORPUS  DELICTI, 

confession  as  proof  of 217 

CORRESPONDENCE, 

the  whole  read 201,  n. 

diplomatic,  admissibility  and  effect  of 491 

(See  Letters.) 
CORROBORATION, 

of  accomplices 380-88- 

of  answer  in  chancery •     •     •     •     -^^ 

in  per]iu-y '^'^' 

CORROBORATIVE  EVIDENCE, 

what  it  is 381,  n. 

COSTS,  ^^ 

liability  to,  renders  incompetent 401,  40L 

(See  Witnesses.) 
CO-TRESPASSER, 

when  admissible  as  a  witness 357,  359 

(See  Witnesses.) 
COUNSEL,  (See  Privileged  Communications.) 

who  are 239 


INDEX.  649 

COUXSEL,  —  Continued. 

client's  communications  to,  privileged 240,  241 

COUNTERFEIT, 

whether  provable  by  admission 97,  n. 

COUNTERPART, 

■whether  original  evidence 81,  n. 

if    any,  must  be  accounted  for,  before   secondary  evidence  is 

admitted 558 

COURTS, 

judicially  notice  what  is  generally  known 6  a 

ecclesiastical,  witnesses  in 260  a,  n. 

jurisdiction  of i      518,  544,  545,  558 

proceedings  in,  how  proved 510,  518,  550 

admu-alty,  seals  of,  judicially  noticed 5,  479 

judgments  of 525,  541 

exchequer,  judgments  in 525,  541 

foreign,  judgments  in 540-546 

probate,  decrees  of,  when  conclusive 618,  550 

COVENANT, 

effect  of  alterations  upon 564:-568 

(See  Private  Writings.) 
COVERTURE,  (.S'ee  Husband  and  Wife.) 

CREDIT   OF   WITNESSES, 

mode  of  impeaching 461-469 

restoring 467 

collateral  facts  affecting 459 

matter  of  opinion 461,  n. 

CREDITOR, 

when  competent  as  a  witness 392 

CRIMEN  FALSI, 

what 573 

(5ee  Witnesses.) 
CRBIE, 

how  far  one  is  proof  of  another 53 

bm'den  of  proof  of 81  a-81  c 

CRBIES, 

what  render  incompetent 373,  374 

{See  Witnesses.) 
CRIMINAL  CONVERSATION,  action  for, 

letters  of  wife  to  a  husband  admissible 102 

wife  competent  to  prove 254  n.,  337  n.,  344 

CRO  S  S-EX  AMIN  ATION, 

of  parties 445,  n. 

of  witnesses 445-407 

as  to  contents  of  letters 88,  437  n. 

and  facts  evidenced  by  writings  ...  90  n.,  464  n. 

observations  on  proper  mode 446,  n. 

(See  Witnesses  ) 
CURTESY, 

tenant  by,  a  competent  witness  for  the  heir 389 


650  INDEX. 

CUSTODY, 

proper,  what 142 

CUSTOMARY, 

right  of  common  provable  by  reputation  .     .     .     128,  131,  137  n.,  405 

CUSTOM, 

how  proved 128-139 

by  what  witness 405 

explains  lease 294 

may  be  inferred  from  single  act 130,  n. 

how  far  provable  to  explain  writing 292-294 

{See  Hearsay.) 

CUSTOM-HOUSE, 

books,  inspection  of 475 

contents  of,  how  proved 91 


D. 

DAMAGES, 

proof  of,  right  to  begin 75 

when  unliquidated 76 

waiver  of,  parol  evidence 304 

presumption  as  to  amount 48,  n. 

DATE   OF   CONTRACT, 

when  matei'ial 304,  n. 

DEADLY  WEAPON, 

presumption  from  use  of 18 

DEAF  AND   DUMB, 

competent  witness 366 

DEATH, 

when  presumed 29,  30,  35,  41 

proof  of 550 

letters  of  adminstration  as  proof  of 41,  550 

DECLARATIONS, 

kinds  admissible  as  original  evidence 123 

dying 156-162,346 

of  agents  bind  principal,  when 113,  234 

of  deceased  attesting  witnesses,  rejected  why 126 

of  conspirators Ill 

in  disparagement  of  title 109 

as  to  domicile 108 

of  perambulators 146 

of  family,  in  matter  of  pedigi-ee 103,  104  a 

qualifying  acts 108,  109 

of  partners,  agents,  and  third  persons 112-117 

against  interest 147-155 

and  replies  of  persons  referred  to 182 

of  husband  and  wife  against  each  other 345,  346 

by  interpreter,  provable  aliunde 183 

of  intestate  binding  upon  administrators 169 

of  owner  as  affecting  titles 100,  109 


INDEX. 


651 


DECLARATIONS,  —  Continued. 

of  war,  admissibility  and  effect  of ,     ....     491 

of  spectators  of  a  picture  as  to  its  meaning  not  hearsay  .     .     .     101,  n^ 

as  res  gestce lUS-115 

as  to  title 1|^^ 

luider  oath •^-'^ 

as  to  pedigree ^'^^ 

of  former  owner  as  to  title 1*^9)  ^^'^ 

DECREES, 

of  probate  and  ecclesiastical  courts SOi) 

DECREES   IX   CHANCERY, 

proof  of :     ^^} 

their  admissibility  and  effect 5t0,  551 

DEED, 

estoppel  by "'~±r 

when  presumed "*" 

how  to  be  set  out  in  pleading _    y^ 

cancellation  of,  when  it  divests  the  estate 265,  568 

number  of  witnesses  required  to - '  * 

delivery  of 568  a,  n. 

may  be  shown  by  parol  to  be  mortgages 28-1,  n. 

what  is  matter  of  description  in 6^8,  69 

enrolment  of •    ^J'^'  "• 

estoppel  by 24,  -o,  -11 

execution  of 5^'"^'  '^~^'^ 

DEEDS, 

ancient,  presumption  in  favor  of 21,  143, 144,  564,  5<^0 

prove  themselves ^^" 

produced  by  adverse  party,  how  proved 5(1 

the  holder,  how  proved 561 

where  attesting  witness  is  not  to  be  had 57l 

alterations  in 564  n.,  566-568 

execution  of,  how  proved 569,  n. 

certified  copy  of,  proves  what "^^^^  "• 

DEFAULT, 

judgment  by,  its  effect  on  admissibility  of  the  party  as  a  wit- 
ness for  co-defendants 355,  356,  357 

DEGREES, 

in  secondary  e\ddence 84  n.,  5b-  n. 

DELIVERY, 

of  deed 568  a,  n. 

entry  in  shop-books  evidence  of  . lib,  ??• 

DEMONSTRATIO  FALSA, 

parol  evidence  to  correct 301 

DEMURRER, 

auswer  and  plea  in  chancery,  effect  of 551 

DEPOSIT, 

of  money,  to  restore  competency  of  a  witness 430 

DEPOSITIONS, 

inferior  evidence ^"^ 


652  INDEX. 

DEPOSITIONS,  —  Con^mweJ. 

of  witnesses  subsequently  interested,  whether  admissible     .     .  167,  168 

residing  abroad,  when  and  how  taken 320 

distance  of  residence,  how  reckoned 322,  n. 

sick,  &c 220,321 

in  general,  manner  of  taking 321-324 

in  perpetuam 324,  325,  552 

may  be  used  to  assist  memory 436,  n. 

taken  in  chancery,  how  proved,  to  be  read  at  law 552,  554 

foreign ^'^-' 

to  be  read  in  another  action,  complete  identity  of  parties  not 

requisite 553,  5o4 

to  prove  custom,  prescription,  seisin,  &c 555 

to  be  read  in  another  action,  power  of  cross-examination  requi- 
site     554 

when  admissible  against  strangers 555 

(See  Witnesses.) 

under  commission 517 

and  verdict  to  prove  reputation 555 

use  of,  when  admission  of  facts  deposed  to 553,  n. 

DESCRIPTION, 

what  is  matter  of 56-72 

yields  to  name 301 

in  general 56-64 

in  criminal  cases "^^ 

in  contracts 66-68 

in  deeds 68,  69 

in  records ' "^^ 

in  prescription •  1 

false  effect  of 301 

DESTRUCTION  AND  FABRICATION  OF  EVIDENCE, 

presumption  from 37 

DEVISE, 

must  be  in  writing 272 

admissibility  of  parol  evidence  to  explain 287,  289-291 

DILIGENCE, 

generally  question  for  jmy 49,  n. 

DIPLOMA, 

of  physician,  when  necessary  to  be  shown 195,  n. 

DISCHARGE, 

in  bankruptcy,  restores  competency 430 

of  written  contract,  by  parol 302-304 

DISCHARGE  ON  EXECUTION, 

receipt,  variable  by  parol 305 

DISCRETION  AND  CAPACITY, 

presumed 28 

DISFRANCHISEMENT, 

of  a  corporator,  to  render  liira  a  competent  witness 430 

DISPARAGEMENT  OF  TITLE, 

declarations  in ■109 


INDEX.  653 

DIVORCE, 

upon  confession  of  adultery  decreed 217 

foreign  sentence  of,  its  effect 544,  545 


decree  against,  as  evidence  of  facts  set  up  in  defence 


520 


DOMICILE, 

declarations  as  to ^^° 

DOUBT, 

reasonable,  prisoner  has  benefit  of 223,  n, 

DOWER, 

tenant  in,  a  competent  witness  for  heir 3S9 

DRIVER, 

of  carriage,  when  incompetent  as  a  witness 396 

DRUNKEXXESS, 

confession  during —^ 

DUCES   TECUM, 

subpoena 414,  558 

(.See  Private  Writings.     Witnesses.) 
DUPLICATE, 

must  be  accounted  for,  before  secondary  proof  admitted      .     .     •     558 

notarial  instruments  and  deeds,  originals 97,  n. 

DURESS, 

admissions  made  under ^^^ 

DUTY, 

performance  of,  presumed --' 

DYIXG  DECLARATIONS, 

when  admissible,  value  and  effect  of 156-162,  346 

impeachable  by  showing  unbelief  of  declarant 162,  n. 

(See  Hearsay.) 

whether  admissible  in  civil  cases 156,  n. 

of  deceased  subscribing  witness  inadmissible  to  impeach  instru- 
ment witnessed 126,  156  n. 


E. 

ECCLESIASTICAL  COURTS, 

number  of  witnesses  required  in 260  a,  n. 

what  part  of  their  jurisdiction  known  here 518,  559 

proceedings  in,  how  proved,  &c 510,  ol8 

their  effect 550 

EJECTIilENT, 

defendant  in,  when  a  competent  witness 360 

ENROLMENT, 

of  deeds ^''3'  "• 

ENTRIES, 

not  impeachable  by  proof  of  character  of  pai-ty lid,  n^ 

by  steward 147,  155 

against  interest  and  in  the  course  of  duty  distinguished  .     .     .    115,  n. 

minutes  and  records  as no,  tj. 

in  shop-books 117-llt» 

not  instruments H"'  "* 


654  INDEX. 

ENTRIES,  —  Continued. 

by  third  persons,  when  and  why  admissible  .     .    115-117,  120,  151-155 

by  deceased  rector 155 

by  deceased  attorney  prove  service  of  notice 116 

ENTRY, 

forcible,  tenant  incompetent  witness  in 403 

EQUITY, 

parol  evidence  to  rebut 296  a 

ERASURE 564-568  a 

ESTOPPEL, 

principle  and  natm-e  of 22,  23  n.,  204-210 

in  deed  must  be  mutual 211,  n. 

by  written  instructions 276,  n. 

by  deed,  who  are  estopped,  and  in  what  cases 24,  25,  211 

as  to  what  recitals 26 

en  pais -0' 

ratification  by 269 

by  admissions 27 

by  conduct 27 

(5ee  Admissions.) 

EVIDENCE, 

nature  and  principles 1-3 

and  proof  distinguished 1 

demonstration,  what 1 

cumulative,  what 2 

sufficiency,  for  jury 2 

competency,  for  court 2  ' 

basis  of 7-12 

degrees  in  circumstantial 13  a 

definition 1 

moral,  what 1 

competent 2 

satisfactory  and  sufficient 2 

direct  and  circumstantial 13 

presumptive,  {See  Presumption.) 

relevancy  of 40-55 

general  rules  governing  production  of 50 

must  correspond  with  the  allegations,  and  be  confined  to  the  issue,       51 

of  knowledge  and  intention,  when  material 53 

how  far  necessity  modifies  rules  of 348,  n. 

six  practical  rules  concerning 584,  n. 

of  character,  when  material  to  the  issue 54,  55 

proof  of  substance  of  issue  is  sufficient 56-73 

rules  of,  the  same  in  criminal  as  in  civil  cases 65 

the  best  is  always  required °- 

what  is  meant  by  best  evidence 8^ 

primary  and  secondary,  what 84 

secondary,  whether  any  degrees  in 84  n.,  582 

oral,  not  to  be  substituted  for  written,  where  the  law  requires 


writing 


88 


INDEX.  655 

EVIDENCE,  —  Continued. 

oral  not  to  be  substituted  for  wi-itten  contract 87 

for  any  writing  material  to  the  contro- 
versy    88 

unless  collateral 89 

for  wiitten  declaration  in  extremis     .     .     IGl 

of  customs 128-130,  405 

of  deceased,  sick,  absent,  or  insane  witness 163-166 

destruction,  fabrication,  and  spoliation  of,  presumptions  from      .       37 

notice  to  produce 561 

when  may  be  called  for  on  notice 563 

order  of,  and  course  of  trial 469  a 

in  discretion  of  judges 52,  n. 

affirmative  more  weighty  than  negative 74,  n. 

voluntary  destruction  of  instruments  of,  effect  of 84,  n. 

of  absent,  deceased,  and  disqualified  witness 163,  n. 

order  of 469,  n. 

when  it  may  be  given,  though  a  writing  exists 90 

exceptions  to  the  rule  which  rejects  secondary  evidence  in, — 

1.  case  of  public  records 91 

2.  official  appointments 92 

3.  result  of  voluminous  facts,  accounts,  &c.  .     .       93 

4.  inscriptions  on  monuments,  &c 94,  105 

5.  examinations  on  the  voir  dire 95 

6.  some  cases  of  admission 96 

7.  witness  subsequently  interested,  his  former 

deposition  admissible 168 

excluded  from  public  policy,  what  and  when 236-254 

l^rofessional  communications      ....  237-248 

proceedings  of  arbitrators 249 

secrets  of  state 250,  251 

proceedings  of  grand  jurors 252 

indecent,    or   injurious   to    the  feelings  of 

others 253,  344 

communications  between  husband  and  wife, 

254,  334-345 

illegally  obtained,  still  admissible 254  a 

■what  amount  necessary  to  establish  a  charge  of  treason  .     .     .  255,  256 

perjm-y  ....     257 
to  overthrow  an  answer  in  chancery     .     .     260 

in  ecclesiastical  courts 260  a,  n. 

■written,  when  requisite  by  the  Statute  of  Frauds 261-274 

instruments  of 307 

oral,  what 308 

viva  voce  best 320,  n. 

corroborative,  what 381,  n. 

objection  to  competency  of,  when  to  be  taken 421 

examined  copy 608 

(5ee  Privileged  Communications.) 
EXAMINATION, 

of  prisoner,  how  proved 520 


656  INDEX. 

EXAMIXATIOX,  —  Continued. 

of  prisoner,  confessions  in .     224 

certificate  of,  how  far  conclusive 227 

on  criminal  charge,  when  admissible 224,  227,  228 

signature  of  prisoner  unnecessary     ....     228 
EXAMINATIOX  IN  BANKRUPTCY, 

not  admissible  against  the  bankrupt  on  a  criminal  charge    .     .     .     226 

exclusion  of  witness  while  others  are  being  examined      .     .     .    432,  n. 
EXCHEQUER, 

judgments  in,  when  conclusive 525,  541 

EXCLAMATIONS, 

in  mortal  terror  admissible  upon  the  same  gi-ound  as  dying  decla- 
rations        156,  n. 

evidence  not  hearsay 102 

EXECUTION, 

of  deeds,  &c.,  proof  of 569,572 

{See  Private  Writings.) 
EXECUTIVE, 

acts  of,  how  proved 479 

EXECUTOR, 

admissions  by 179 

foreign 544 

sales  by,  presumed  regular 20 

EXEMPLIFICATION, 

what  and  how  obtained 501 

EXPENSES   OF  WITNESSES,    {See  Witnesses.) 
EXPERIENCE, 

as  ground  of  belief 8-12 

EXPERTS, 

will  be  required  to  attend  when 319 

who  are 440,  n. 

when  their  testimony  is  admissible  to  decipher  writings  ....     280 

to  explain  terms  of  art  .     .     .     280 
to  explain  provincialisms,  &c.     280 

to  what  matters  they  may  give  opinions 440,  576,  580  n. 

entitled  to  pay  before  testifying 310,  n. 

testimony  of,  in  comparison  of  handwriting 580,  n. 

EXPRESSIONS, 

of  bodily  or  mental  feelings  not  hearsay 102 

EXTRADITION, 

proof  by  deposition  in 552,  n. 

F. 

FABRICATION, 

and  destruction  of  evidence,  presumption  from 37 

FACT, 

presumptions  of .     .     .  44 

FACTOR,  {See   Agent.) 

FALSE  PRETENCE, 

one  may  be  proof  of  fraudulent  intent  in  another 53 


INDEX.  65T 

FALSUS  IN   UNO,  FALSUS  IN  OMNIBUS, 

meaning  of  the  maxina 461,  n. 

FAMILY, 

recognition  by,  in  proof  of  pedigree 103,  104,  131 

(See  Hearsay.     Pedigree.) 

FELOXY, 

conviction  of,  incapacitates  witness 373 

(See  Witnesses.) 

FIXTURES, 

what  are 271 

FLAGS, 

of  other  nations  judicially  noticed 4 

FLEET   BOOKS, 

contents  provable  by  copy 91 

FLIGHT, 

of  one  accomplice  no  evidence  of  guilt  of  another      .     .     .     .    Ill,  ?!. 

FORCIBLE  ENTRY, 

tenant  incompetent  as  a  witness 403 

(See  Witnesses.) 

FORCIBLE  MARRIAGE. 

wife  competent  to  prove 343 

FOREIGN   COURTS, 

judgments  in,  effect  of 540-51G 

proof  of 514 

jurisdiction  of,  must  be  shown 540,  511 

FOREIGN  JUDGMENTS, 

of  infamy,  do  not  go  to  the  competency 376 

proof  of 514 

in  rem,  effect  of 513-515 

in  personam 515-519 

at  common  law 519 

(See  Records  and  Judicial  Writings.) 

FOREIGN  LAWS, 

proof  of 486,  488 

(See  Public  Records  and  Documents.)    * 

FOREIGN   STATES,        (See  Judicial  Notice.     Public  Records 
AND  Documents.    Records  and  Judicial  Writings.) 

FORGERY, 

conviction  of,  incapacitates  witness 373,  374 

party  whose  name  is  forged,  when  competent 414 

(See  Private  Writings.) 

FORMER  RECOVERY, 

whether  conckisive  as  evidence 531 

in  tort,  effect  of 533 

FRAUD, 

general  presumption  agamst 34,  35,  80 

parol  proof  of 284 

one  may  be  proof  of  another 53 

accident  and  mistake,  parol  evidence  to  prove 296  a 

(See  Presumptions.) 
VOL.  I.  42 


658  INDEX. 

FRAUDS, 

Statute  of 262-274 

(See  Writings.) 


G. 

GA^IE  LAWS, 

want  of  qualifications  under,  must  be  proved  by  the  affirmant .     .       78 
GAZETTE,   GOVERNMENT, 

in  what  cases  admissible 492 

{See  Public  Records  and  Documents.) 
GENERAL   REPUTATION, 

original  evidence 101 

GESTURES,  : 

evidence  of  feelings 102 

GOODS, 

what  are,  under  Statute  of  Frauds 271 

GOVERNMENT, 

new,  existence  of,  how  proved 4 

acts  of ,  how  proved 383,478,491,492 

(See  Public  Records  and  Documents.) 
GOVERNOR, 

of  a  state  or  province,  when  not  bound  to  testify 251 

provincial,  communications  from,  privileged 251 

(See  Privileged  Communications.) 
GRAND  BILL  OF   SALE, 

requisites  on  sale  of  ship 261 

GRAND  JURY, 

transactions  before,  how  far  privileged 252 

(See  Privileged  Communications.) 
GRANT, 

when  presumed 45 

conclusively 17 

GRAVESTONES, 

inscriptions  on 94 

GROANS, 

evidence  of  feelings 102 

GUARDIAN, 

admission  by,  binds  himself  only 179 

GUILTY  POSSESSION, 

evidence  of 34,  35 


H. 

HABEAS  CORPUS, 

ad  testificandum 31- 

(See  Witnesses.) 
HANDWRITING, 

proof  of  genuineness  of 96,  n. 


INDEX. 


659 


HANDT^"RITING,  — Con^muerZ.  _ 

attorney  competent  to  prove  client's  writings _•     24- 

proof  of,  in  general 5TG-581 

{See  Private  Writings.) 

HEALTH, 

proof  of,  by  opinion **"»  "' 

HEARSAY, 

admissible  on  preliminary  questions  for  the  court 9!),  n. 

,    ,  .  99,  lUO 

what  IS ', ' 

what  is  not  hearsay 

information,  upon  which  one  has  acted 101 

conversation  of  one  whose  sanity  is  questioned  .     .     .     101 
answers  given  to  inquiries  for  information    .     .     •  101,  574 

what  is  not  general  reputation 101,101a 

expressions  of  bodily  or  mental  feelings 102 

complaints  of  injury,  recenti  facto 10- 

declarations  of  family  as  to  pedigree    .  103,  104,  104  a,  134 

inscriptions 10» 

declarations  accompanying  and  qualifying  an  act  done,    108, 

109 

in  disparagement  of  title 109 

of  other  conspirators HI 

110 

of  partners ^^^ 

of  agents H'^'  '^^^ 

of  agents  and  employees  of  coi-porations  .     .   ^     .^lU  a 

entries  by  third  persons 115-117,  1-0 

indorsements  of  partial  payment 1-1)  122 

when  and  on  what  principle  hearsay  is  rejected      ....       124,  12o 
when  admissible  by  way  of  exception  to  the  rule,  — 

1.  in  matters  of  public  and  general  interest  .  .  .  128-140 
restricted  to  declarations  of  persons  since  dead  .  .  130 
and  concerning  ancient  rights 130 

ante  litem  rnotam 131-134 

situation  of  the  declarant 135 

why  rejected  as  to  private  rights 137 

particular  facts 138 

includes  wTitings  as  well  as  oral  declarations ...  139 
admissible  also  against  public  rights IW 

2.  in  matters  of  ancient  possessions 141-14G 

boundaries,  when 1-15,  n. 

perambulations I'lG 

3.  declarations  against  interest 147-155 

books  of  bailiffs  and  receivers 1 50 

private  persons I'^O 

the  rule  includes  all  the  facts  related  in  the  entiy  .  152 
the  party  must  have  been  a  competent  witness  .  .  153 
in  entries  by  agents,  agency  must  be  proved  ...  154 
books  of  deceased  rectors,  &c •_     155 

4.  dying  declarations 15G-162 

principle  of  admission 156-loS 


060  INDEX. 

HEARSAY,  —  Continued. 

declarant  must  have  been  competent  to  testify    .     .     15S 
circumstances  must  be  shown  to  the  court ....     160 

if  written,  writing  must  be  produced 161 

weakness  of  this  evidence 162 

substance  of  the  declarations 161  a 

answers  by  signs 161  h 

of  husband  or  wife,  when  admissible  against  the 

other 345,  346 

5.  testimony  of  witnesses  since  deceased  ....  163-166 
whether  extended  to  case  of  witness  sick  or  abroad,  163,  n. 
must  have  been  a  right  to  cross-examine    ....     164 

the  jirecise  words  need  not  be  proved 165 

may  be  proved  by  any  competent  witness  ....     166 

witness  subsequently  interested 167,  168 

declarations  and  replies  of  persons  referred  to  admis- 
sible      182 

declarations  and  replies  of  interpreters 183 

HEATHEN, 

not  incompetent  as  a  witness,  and  how  sworn 371 

HEIR, 

apparent,  a  competent  witness  for  ancestor 390 

when  competent  as  witness 392 

HERALD'S  BOOKS, 

when  admissible 105>  "• 

HIGHWAY, 

judgment  for  non-repair  of,  when  admissible  in  favor  of  other 

defendants 534 

HISTORY, 

local,  not  admissible 6  a,  n. 

public,  when  admissible 6  a,  n.,  440  n.,  497 

HOMICIDE, 

when  malice  presumed  from 34 

HONORARY  OBLIGATION, 

does  not  incapacitate  witness 388 

HOUSE,  {See  Legislature.) 

HUSBAND  AND  WIFE, 

declarations  of,  when  admissible  against  each  other   .     .     .       345,  346 

each  competent  against  the  other  for  self-protection 343 

incompetent  as  to  non-access 28,  253 

intercourse  between,  when  presumed 28 

coercion  of  wife  by  husband,  when  presumed 28 

admissions  by  wife,  when  good  against  husband 185 

comnmnications  inter  sese  privileged 254,  334 

no  matter  when  the  relation  began  or  ended 336 

wife  competent  witness  after  husband's  death,  when 338 

none  but  lawful  wife  incompetent  as  witness 339 

whether  husband's  consent  removes  incompetency 340 

rule  applies  when  husband  is  interested 341,  407 

competent  witness  in  collateral  proceedings 342 


ESTDEX. 


6G1 


HUSBAXD    AXD   ^VlYE,  — Contmued. 

exceptions  to  the  rule  in  favor  of  wife 343,  344 

rule  extends  to  cases  of  treason,  sernb 345 

wife  not  competent  witness  for  joint  conspirators  with  her  hus- 
band   407 

articles  of  peace  between 343 

when  competent  witnesses  for  or  against  another  .  334,  344,  363,  381  n. 


I. 

IDENTITY, 

of  name,  evidence  of  identity  of  person 38,  512,  575 

proof  of,  when  requisite 381,  493,  573,  577 

by  attorney 245 

IDIOT, 

incompetent  as  a  witness 365 

ILLEGALITY  OF  CONTRACT, 

provable  by  parol 284,  304 

IMPEACHMENT, 

of  witness 461-469 

of  security  by  maker  or  indorser 383-383 

IMPRISONMENT, 

prima  facie  tortious 80,  n. 

INACCURACIES, 

distinguished  from  ambiguities 299 

INCIDENTS, 

parol  evidence  to  annvJ 294 

INCOMPETENCY,  {See  Witnesses.) 

INCORPOREAL  RIGHTS, 

how  affected  by  destruction  of  deeds 265,  563 

INDEMNITY, 

when  it  restores  competency 420 

INDICTMENT, 

inspection  and  copy  of ,  right  to 4rl 

what  is  matter  of  description  in 6o 

INDORSEE, 

how  affected  by  admissions  of  indorser 190 

{See  Admissions.) 
INDORSEMENT, 

presumed  to  be  of  its  date 121 

of  part  payment  on  a  bond  or  note 121,  122 

not  explicable  by  parol 276,  n. 

INDORSER, 

not  competent  to  impeach  indorsed  instrument 385,  n. 

when  a  competent  witness 190>  383,  385 

{See  Witnesses.) 
INDUCEMENT, 

what,  and  when  it  must  be  proved 63,  n. 

to  confession -20 


662  INDEX. 

INFAMOUS  PERSONS, 

who  are 375 

INFAMY, 

by  foreign  judgment  does  not  disqualify 376 

renders  a  witness  incompetent 372-376 

how  removed 377,  378 

cross-examination  to  show 451 ,  457 

(See  Witnesses.) 

INFANCY, 

proof  of,  rests  on  the  party  asserting  it     .     . 81 

(See   Onus   Probandi.) 

INFERIOR  COURTS, 

inspection  of  their  records 473 

proof  of  their  records 513 

(^See  Public  Records  and  Documents.    Records  and 
Judicial  Writings.) 

INFIDEL,  (See  Witnesses.) 

incompetent  as  a  witness 368-372 

INFIDELITY  OF  WITNESS, 

how  proved 370,  n. 

INFORMER, 

competency  of,  as  a  witness 412-415 

question  who  is,  not  allowable 250,  n. 

(5ee  AVitnesses.) 

INHABITANT, 

admissions  by 1 ' '^ 

when  competent  as  a  witness 331 

rated  and  ratable  distinguished  .     .     . 331,  n. 

INNOCENCE, 

presumed 34,  oo 

except  in  cases  of  libel,  &c 36 

(See  Presumptions.) 

INQUISITIONS, 

post  jnortem,  proof  of 51o 

admissibility  and  effect  of 550 

of  lunacy 556 

extrajudicial  inadmissible 55G 

INSANE  PERSON, 

when  competent  witness .•     •     •     365 

INSANITY, 

must  be  proved  by  the  party  alleging 81 

non-experts  may  testify  as  to 440,  n. 

presumed  to  continue  after  being  once  proved  to  exist     ....       42 
(See  Lunacy.) 

INSCRIPTIONS, 

not  hearsay 105 

provable  by  secondaiy  evidence 90,  94,  105 

INSOLVENT, 

omission  of  a  claim  by,  in  schedule  of  debts  due  to  him  ....     196 
(See  Admissions.) 


INDEX. 


663 


INSPECTIOX, 

of  public  records  and  documents 471-478 

{See  Public  Records  akd  Documents.) 

of  private  writings 559-562 

of  corporation  books 474 

of  books  of  public  officers 475,  476 

(See  Private  Writings.) 
IXSTRUCTIOXS, 

to  counsel,  privileged 240,  241 

{See  Privileged  Commuxicatioxs.) 
INSTRUMENTS, 

entries  in  book  not 116,  n. 

original,  what  are 84,  n. 

INTENT, 

when  presumed 1* 

and  knowledge,  when  material 53 

provable  from  other  similar  acts 53 

and  meaning,  provable  by  opinion 440,  n. 

INTEREST, 

in  land,  what 270,  271 

disqualifying 329-364,386-411 

of  witness,  effect  of,  when  subsequently  acquired  .     .     .    167,  418-420 
subsequent,  does  not  exclude  his  previous  deposition  in  chancery  .     168 

whether  it  does  at  law 168 

{See  Witnesses.) 
INTERLINEATIONS, 

erasures,  and  alterations 564-568  a 

INTERNATIONAL   COMITY, 

presumed ^^ 

INTERPRET  A'^ION, 

rules  of 278,  287  n.,  514  n. 

defined _277 

whether  for  court  or  jury 49  n.,  277  n. 

INTERPRETER, 

will  be  required  to  attend  when 319,  n. 

his  declarations,  when  provable  aliunde 183 

communications  through,  when  privileged 239 

may  give  dying  declarations 161  a,  n. 

admissions  by 183 

INTESTATE, 

his  declarations  admissible  against  his  administrator 189 

{See  Admissions.) 
INTOXICATION, 

confession  during 229,  n. 

ISSUE, 

proof  of,  on  whom,  {See  Onus  Probandi.) 

what  is  sufficient  proof  of 56-73 

identity  of 532 

{See  Allegations.    Variance.) 


QQ4i  INDEX. 

J. 

JEW, 

how  to  be  sworn 371 

JOINT   OBLIGOR, 

acknowledgment  by 112 

competency  of 395 

JOURNALS, 

of  legislature,  how  proved 482 

admissibility  and  effect  of 491 

JUDGE, 

his  province 49,  160,  219,  277  n.,  365  n. 

when  incompetent  as  a  witness 166,  249,  364 

his  notes,  when  admissible 166,  168  n. 

may  resort  to  history,  records,  &c. ,  when 6  a 

may  ask  questions  at  his  discretion 434,  n. 

JUDGMENT, 

former,  when  provable 531 

effect  of 531-534 

in  criminal,  not  admissible  in  civil  cases 537 

in  admiralty,  how  far  conclusive 525,  541 

by  default  against  co-defendant 355-357 

foreign,  of  divorce 544,  545 

of  Coui't  of  Exchequer 525,  541 

in  rem,  effect  of 543-545 

JUDGMENTS, 

of  inferior  courts,  how  proved 513 

in  trespass,  when  bar  in  trover 533 

as  admissions 513 

grounds  of  conclusiveness  of 528 

upon  what  parties  and  facts  binding 522-531 

who  are  parties  and  privies  to 535,  536 

as  facts,  always  provable  by  the  record 538,  539 

against  joint  and  several  contractors 539  a 

foreign,  in  rem  and  in  personam 540,541,546 

in  trustee  process 542 

in  rem,  how  far  conclusive 543 

affecting  personal  status 544 

JUDICIAL  NOTICE, 

of  what  things  taken 4,  6  a,  479 

of  boundary 6a 

JUDICIAL  PROCEEDINGS, 

presumption  in  favor  of 19,  227 

JURISDICTION,  (See  Records  and  Judicial  Writings.) 

of  foreign  courts  must  be  shown 540,  541 

JURORS, 

when  advised  by  com-t 45-48 

their  province 44,  49,  160,  219,  277  n.,  365  n. 

their  competency  as  witnesses 252,  252  a,  363  n.,  364  n. 

grand,  proceedings  not  to  be  disclosed 252 

evidence  before,  when  provable 252,  n. 


INDEX. 


K. 


665 


KINDRED  (See  Family.     Hearsay.     Pedigkee.) 

KNOWLEDGE, 

proof  by  common  repute 13°)  "• 

and  intent,  when  material 5' 

notoriety,  evidence  of 1*^° 


L. 

LANDLORD, 

title  of,  tenant  cannot  deny ^5 

LANDS, 

meaning  of,  in  Statute  of  Frauds 270 

LANGUAGE, 

how  to  be  understood "'" 

what  it  is,  who  to  determine 288  b 

LAPSE   OF   TLME, 

not  conclusive  bar  to  title 4o 

LARCENY, 

presumption  of ,  from  possession  when •     •      11,31 

(See  Presumptions.     Guilty  Possession.) 
LAW, 

questions  for  court,  and  not  for  jury 49,  n. 

LAW  AND   FACT, 

questions  of *" 

presumptions  of 1* 

LAWFULNESS, 

of  acts,  when  presumed 34 

LAWS, 

judicially  noticed,  when 6  a 

LEADING   QUESTIONS, 

what,  and  when  permitted 434,  435,  447 

(See  Witnesses.) 
LEASE, 

when  it  must  be  by  wi-iting 263,  264 

expounded  by  local  custom,  when 294 

LEGAL  ESTATE, 

conveyance  of,  when  presumed 46 

LEGATEE, 

when  competent  as  a  witness 392 

LEGISLATURE, 

journals  of,  how  proved 482 

admissibility  and  effect  of 491 

transactions  of,  how  proved 480-482 

(See  Public  Records  and  Documents.) 

proceedings  in,  how  far  privileged  from  disclosm-e      ....    251,  n. 
LEGITIMACY, 

when  presumed -^>  -^1  " 


G66  INDEX. 

LEGITIMACY,  —  Continued. 

presumption  of,  how  rebutted 81 

mother's  declaration  in  disparagement  of 103,  n. 

LESSEE, 

identity  of,  with  lessor,  as  party  to  suit 535 

LESSOR, 

of  plaintiff  in  ejectment,  regarded  as  the  real  party 535 

LETTERS, 

post-marks  on 40 

parol  evidence  of  contents  of 87,  88 

may  be  explained  by  replies,  or  by  parol 197,?*. 

admission  of  truth  of  statements  in,  by  silence 198 

how  used  in  cross-examination 405 

proof  of,  by  letter-book 116 

cross-examination  as  to 88,  89,  463-4G(j 

addressed  to  one  alleged  to  be  insane 101 

written  by  one  conspirator,  evidence  against  others Ill 

of  wife  to  husband,  when  admissible 102 

whole  correspondence,  when  it  may  be  read 201,  n. 

prior  letters,  by  whom  they  must  be  produced 201,  n. 

of  public  agent  abroad,  admissibility  and  effect  of 491 

of  colonial  governor 491 

{See  Evidence.     Hearsay.     Parol  Evidence.     Witnesses.) 

LETTERS  OF  ADMINISTRATION", 

how  proved 519 

as  proof  of  death • 41,  550 

LETTERS  ROGATORY, 

what. 320 

LIABILITY  OVER, 

its  effect  on  competency  of  witness 393-397 

(See  "Witnesses.) 

LIBEL, 

published  by  agent  or  servant,  liability  of  principal  for  .     .     .36,  234 

LICENSE, 

must  be  shown  by  the  party  claiming  its  protection  .  .  .  .  79,  81  c 
LIFE  AND  DEATH, 

presumptions  of 41 

LBIITATIONS, 

joint  debtor,  acknowledgment 112)  "• 

admission l''^4,  n. 

LIS  MOT  A, 

what,  and  its  effect 104  n.,  131-134 

LLOYD'S  LIST, 

how  far  admissible  against  imderwriters 198 

LOCAL  CUSTOM, 

explains  leases ""'^ 

LOG-BOOJC, 

how  far  admissible 49o 

LOSS, 

adjustment  of,  when  conclusive 212 


INDEX. 


6C7 


LOST  RECORDS   AND  WRITINGS, 

proof  of  contents  of 86,  509  n.,  558  n. 

private -writings,  proof  of 81  n.,  557,  5o^- 

records    84  «.,  508 

(See  Evidence.     Private  Whitings.     Records  and  Judicial 

AVUITINGS.) 

LUNACY, 

when  presumed  to  continue ^- 

inquisition  of,  its  admissibility  and  effect 550 


M. 

MAGISTRATE, 

confessions  made  to 216,  222,  224,  --7 

MAGNITUDE, 

and  number,  how  far  material CI 

(See  Confession  of  Guilt.) 
MALICE, 

when  presmned 18,  34 

MALICIOUS  PROSECUTION, 

testimony  of  defendant  given  before  grand  jury,  admissible  iu      .     352 

judgment  of  acquittal,  when  admissible  in 538 

copy  of  judgment  of  acquittal,  whether  plaintiff  entitled  to  .     .     .     471 
MALICIOUS  SHOOTING, 

wife  competent  to  prove 343 

MAPS  AND  SURVEYS, 

when  evidence 139,  145  n.,  189  n.,  285  n.,  484  re. 

MARK, 

signing  by -'->  «''- 

MARKS, 

surveys,  boundaiy ^1 

MARRIAGE, 

whether  provable  by  reputation 107 

forcible,  wife  admissible  to  prove 343 

second,  in  case  of  polygamy,  by  whom  proved 339 

and  time  of,  included  in  pedigree 104 

when  presumed,  from  cohabitation 27,207 

foreign  sentences  as  to,  effect  of 544,545 

proof  of 342,313,484,493 

(See  Husband  and  Wife.     Public  Records  and  Documents. 
Records  and  Judicial  Writings.) 
MARRIED  WOMAN,  (See  Wife.) 

MASTER, 

when  liable  for  crime  of  servant 234,  n. 

when  servant  witness  for 416 

when  not 396 

MEANING  AND  INTENT, 

provable  by  opinion 440,  re. 

MEDICAL  WITNESS, 

not  privileged 248 


668  INDEX. 

MEDICAL   WITNESS,  —  Continued. 

may  testify  to  opinions,  when 440 

when  not 441 

MEMORANDUM, 

to  refresh  memory  of  witness 436-439 

{See  Witnesses.) 
MEMORY, 

refreshed  by  memorandum 436-439 

MIND, 

state  of,  presumed  to  continue 42,  370 

MINUTES, 

of  recording  officer,  unextended,  pi'ovable  by  parol     ....      86,  n. 

of  proceedings  at  corporation  meeting 115,  n. 

MISJOINDER  OF  PARTIES, 

effect  on  competency 358 

MISTAKE, 

accident,  and  fraud,  parol  evidence  to  correct 296 

admissions  by,  effect  of 206 

of  law  apparent  in  a  foreign  judgment,  effect  of 547,  n. 

J^nXED  QUESTIONS, 

of  law  and  fact 49 

{See  Jurors.) 
MONOMANIAC, 

whether  competent  as  witness 365 

MONTH, 

meaning  of,  when  for  court,  when  for  jury 49,  n. 

MONUMENTS, 

inscriptions  on 94 

MOTIVE, 

how  proved 53,  n. 

MUNICIPAL  CORPORATION  BOOKS 493 

MURDER, 

when  malice  presumed 18 


NAME, 

prevails  over  description 301 

identity  of,  is  identity  of  person 38,  512,  575 

NAVY  OFFICE, 

books  of 493 

{See  Public  Records  and  Documents.) 
NECESSARIES, 

how  proved 116,  n. 

NEGATIVE, 

when  and  by  whom  to  be  proved 78-81 

{See  Onus  Probandi.) 
NEGLIGENCE, 

proof  of,  burden  on  him  who  alleges 81 


IKDEX. 


669 


XEGLTGEXCE  AXD  CARE, 

generally  question  for  jury 49,  n. 

NEGOTIABLE  INSTRUMENT, 

unimpeachable  by  party  to 383-oSo 

NEUTRALITY  OF  SHIP, 

-n-hen  presumed ^ 

NEW  PROMISE, 

by  one  partner  binding  upon  the  other     .    112  n.,  117,  189,  207,  527  a 

limitations ^'■~i  " 

NOLLE  PROSEQUI, 

effect  of,  to  restore  competency 356,  36.^ 

{See  "Witnesses.) 
NON-ACCESS, 

husband  and  wife,  when  incompetent  to  prove 28,  253 

NON-PAYMENT, 

twenty  years,  presumption  from 39 

NOTARIES, 

seals  of,  judicially  noticed 5 

NOTES, 

brokers',  bought  and  sold,  %7hether  original  evidence      .     .     .      97,  n. 

NOTICE, 

judicial,  what  within 4-G  a 

notoriety,  evidence  of 1*^° 

to  produce  writings 500-563 

(See  Private  Writings.) 
NOTICE  TO  QUIT, 

service  of,  how  proved 1^^ 

NOTORIETY, 

when  e%ddence  of  the  existence  of  a  lease 491,  n. 

general,  when  evidence  of  notice 138 

whether  noticeable  by  a  judge 364 

NULLUM  TEMPUS  OCCURRIT  REGI, 

when  overthrown  by  presumption 45 

NUL  TIEL  RECORD, 

plea  of,  how  tried ^0- 

NUIMBER  AND  MAGNITUDE, 

when  material, "^ 


0. 

OATH, 

affirmation  substituted  for 3/1 

its  nature '    j     ^_ 

in  litem,  when  admissible 348-350,  852,  558 

how  administered 3  <  1 

OBLIGATION, 

legal  and  moral,  not  provable  by  opinion  of  witness 441 

OBLIGEE, 

release  by  one  of  several  binds  all 427 

(See  Witnesses.) 


C70  INDEX. 

OBLIGOR, 

competency  of  joint 395 

release  to  one  of  several  discharges  all 427 

(See  Witnesses.) 
OFFICE, 

appointment  to,  when  presumed 83,  92 

OFFICE  BOND, 

how  proved 573 

OFFICE-BOOKS, 474^476,493-495 

OFFICER, 

(le  facto,  prima  facie -pvooi  oi  appointment 83,92 

OFFICIAL  APPOINTMENTS, 

when  provable  by  parol 92 

OFFICIAL  CERTIFICATES, 

when  admissible 498 

OFFICIAL  COMMUNICATIONS, 

when  privileged 249-252 

(See  Privileged  Communications.) 

OFFICIAL  REGISTERS, 484,  485,  496 

ONUS  PROBANDI, 

devolves  on  the  affirmant 74 

on  party  producing  a  witness  deaf  and  dumb     ....     366 
on  party  alleging  defect  of  religious  belief 370 

in  probate  of  wills 77 

in  actions  on  promissory  notes,  &c.,  fraudulently  put  in  circula- 
tion   81  a 

in  actions  by  the  holder  of  a  bank-bill  shown  to   have   been 
stolen 81  « 

in  criminal  cases 81  & 

exceptions  to  the  rule,  — 

1.  when  action  founded  on  negative  allegation  ...       78 

2.  matters  best  known  to  the  other  party 79 

3.  allegations  of  criminal  neglect  of  duty 80 

4.  other  allegations  of  a  negative  character   ....       81 
OPEN  AND  CLOSE, 

right  to       75,  76 

OPINIONS, 

when  admissible 280,  440,  441,  461,  576,  580  n. 

presumed  to  continue 42,  370 

of  underwriter 441 

of  physician 440 

ORAL  EVIDENCE, 

inadmissible  to  prove  contents  of  writing 86-93 

(See  Evidence.) 
ORIGINAL, 

instruments  of  evidence,  what 84,  n. 

printed  papers 90 

brokers'  entries,  and  bought-and-sold  notes 97,  n. 

OUTLAWRY, 

jiidgment  of,  works  infamy 375 


INDEX.  671 

OVERT  ACT, 

proof  of,  in  treason 235 

OWNER, 

of  property  stolen,  a  competent  witness 412 

OWNERSHIP, 

proved  by  possession 34 


P. 

PAPERS, 

printed,  all  originals 90 

private,  when  a  stranger  may  call  for  their  production    ....     246 
(See  Private  Writings.) 
PARCELS, 

bill  of,  explained  by  parol 305,  n. 

PARDON, 

its  effect  to  restore  competency 377,  378 

(See  Witnesses.) 
PARISH, 

boundaries,  proof  of 145 

judgment  against,  when  evidence  for  another  parish 534 

books 493 

(See  Public  Records  and  Documents.) 
PARISHIONER, 

rated,  admissions  by 179 

PARLIAMENT, 

proceedings  in,  how  far  privileged  from  disclosure     ....    251,  n. 
PAROL  EVIDENCE, 

inadmissible  to  contradict  magistrate's  certificate  of  examina- 
tion        227,  n. 

admissible  to  establish  a  trust 266 

its  admissibility  to  explain  wi'itings 275-305 

written  instructions 276,  n. 

principle  of  exclusion ' 276 

the  rule  excludes  only  evidence  of  language 277,  282 

in  what  sense  the  words  are  to  be  understood 278 

the  rule  of  exclusion  is  applied  only  in  suits  between  the  parties  .  279 
does  not  exclude  testimony  of  experts  .  .  280 
illustrated  by  examples  of  exclusion    .     .     .     281 

does  not  exclude  other  writings 2  82 

excludes  evidence  of  intention    ....       282  a 
is  admissible  to  show  the  written  contract  originally  void    .     .     .     284 

or  conditional 284,  n. 

want  of  consideration 284,  304 

fraud 284 

iUegality 284,  304 

incapacity  or  disability  of  party     ....     284 

want  of  delivery 284 

admissible  to  explain  and  contradict  recitals,  when 285 

ascertain  the  subject  and  its  qualities,  &c.      286-288,  301 


672  INDEX. 

PAROL   EVIDENCE,  —  Continued. 

these  rules  apply  equally  to  -wills 287,  289-291 

Mr.  "Wig-ram's  rules  of  interpretation  of  wills 287,  n. 

of  any  intrinsic  circumstances  admissible 288,  288  a 

who  must  determine  correct  reading  of  a  paper 288  h 

of  usage,  when  and  how  far  admissible 292,  293,  294 

to  annex  incidents  admissible 294 

to  show  that  apparent  joint  obligees  are  sureties 281,  7i. 

explanatory  language  during  negotiations  .     .     .  280  n.,  282  n. 
whether  admissible  to  show  a  particular  sense  given  to  common 

words 295 

admissible  to  rebut  an  equity 296 

reform  a  writing 296  a 

explain  latent  ambiguities 297-300 

apply  an  instrument  to  its  subject 301 

correct  a  false  demonstration 301 

show  the  contract  discharged 302,  304 

prove  the  substitution  of  another  contract  by  parol,    303, 

304 
show  time   of    performance   enlarged   or   damages 

waived 304 

contradict  a  receipt,  when 305 

explain  a  bill  of  parcels 305,  n. 

PARSON, 

entries  by  deceased  rector,  &c. ,  when  admissible 155 

{See  Hearsay.) 
PARTICEPS   CRIMINIS, 

admissible  as  a  witness 378 

PARTIES, 

generally  incompetent  as  witnesses 329,  330 

competent,  when 329  n.,  321  n.,  348,  363 

for  all  purposes 329,  n. 

friends  and  strangers 523,  536 

waive  rights  to  object  to  criminating  questions 331,  n. 

impeachable,  like  ordinary  witnesses 331,  n 

refusal  of  to  testify,  presimiption  from 331,  n- 

may  file  interrogatories  to  each  other 3o3,  n. 

may  be  mutuaUy  called  and  cross-examined 445,  n. 

(See  Witnesses.     Admissions.) 
PARTNERS, 

mutually  affected  by  each  other's  acts 112 

when  bound  by  new  promise  by  one  to  pay  a  debt  barred  by 

statute 112,  n. 

admissions  by 177,189,207,527  a 

(See  Witnesses.) 
PARTNERSHIP, 

once  proved,  presumed  to  continue 42 

how  proved IM- 
PART  PAYMENT, 

effect  of,  on  Statute  of  Limitations 112,  n. 


INDEX.  673 

PART   PAY:MEXT,  —  Continued. 

indorsement  of 121,  122 

PAYEE, 

admissibility  of,  to  impeach  the  security 383-385 

{See  Witnesses.) 
PAYMENT, 

provable  by  parol 302-305 

of  money,  effect  of,  to  restore  competency 408-430 

prior,  admission  of,  effect  of 122,  n. 

indorsement  of  part 121,122 

non,  twenty  years,  presumption  from 39 

{See  AViTXESSES.) 
PAYISIEXT  INTO  COURT, 

■when  and  how  far  conclusive 205 

PEACE, 

articles  of,  husband  and  wife 343 

PEDIGREE, 

what  is  included  in  this  term 104 

proof  of 103-105,  n. 

armorial  bearings,  as  proof  of 105,  n. 

family  recognition 103-104  a 

when  recital,  proof  of 104 

{See  Hearsay.) 
PERAMBULATIOXS, 

declarations  during 146 

when  admissible  in  evidence 146 

PERFORMAXCE, 

enlargement  of  .time  of,  parol  evidence  to  show 304 

of  contract,  parol  evidence  to  prove  time 304 

PERJURY, 

corroborative  proof  of 257,  257  a 

what  amount  of  evidence  necessary  to  establish 257-260 

PERSOXALTY, 

presmnptions  as  to 47 

what  is,  though  annexed  to  land 271 

PHOTOGRAPHS, 

CAndence  when 6  a,  ti.,  581  n. 

PHYSICIAXS; 

when  diploma  must  be  sho'mi 195,  n. 

generally  bound  to  disclose  confidential  communications      .     .     .     248 
(.See  Privileged  Commuxicatioxs.) 
PLACE, 

when  material  or  not 61-63,  65 

PLAINTIFF, 

when  admissible  as  a  witness 348,  349,  361,  558 

{See  Witnesses.) 
PLAX  OR  MAP, 

explains  location 285,  n. 

PLEA, 

answer  and  demurrer  in  chancery,  admissibility  and  effect  of   .     .     551 

TOL.  I.  43 


674  INDEX. 

PLEAS  AND  PLEADINGS 52-08 

POSSESSION", 

character  of,  when  provable  by  declarations  of  possessor     .     .     .     lOG 
(See  Hearsay.) 

when  evidence  of  property 34 

of  guilt 34 

(See  Presumptions.) 
whether  necessai-y  to  be  proved,  under  an  ancient  deed  .     .     .21,  141 

adverse,  presumption  from • 

when  it  constitutes  title 17 

of  unanswered  letters,  presumption  from 19*^ 

POST-MARKS 40 

POST-OFFICE, 

books 484 

(See  Public  Records  and  Documents.) 
PRESCRIPTION, 

presumption  from 1' 

what 17 

variance  in  the  proof  of 71,72 

must  be  precisely  proved 56,  58 

PRESIDENT  OF  THE  UNITED  STATES, 

(See  Executive.     Privileged  Communications.     Witnesses.) 
PRESUMPTIONS, 

of  conveyance  of  legal  estate 40 

only  from  facts  directly  proved 44,  n. 

against  party  producing  inferior  grade  of  evidence     ...      82,  84  n. 

of  law,  conclusive,  on  what  founded 14,  15 

conclusive,  how  declared 10,  17 

from  prescription 17 

from  adverse  enjoyment 16 

from  use  of  deadly  weapon 18 

in  favor  of  judicial  proceedings 19,  227 

consideration  of  bond 19 

formality  of  sales  by  executors,  &c.  ...       20 

but  not  of  matters  of  record  .     .       20 

ancient  documents      .     .     .     .21,  143,  144,  570 

genuineness  and  integrity  of  deeds  .     .  144,  564 

authority  of  agent 21 

as  to  estoppels  l)y  deed 22-24 

by  admissions 27 

by  conduct 27 

omnia  rite  acta 20  a 

as  to  capacity  and  discretion 28,  367 

legitimacy 21 

coercion  of  wife  by  husband 28 

survivorship 29,  30 

neutrality  of  ship 31 

performance  of  duty 227 

from  spoliation  of  papers 31 

principle  and  extent  of  conclusive  presumptions  of  law   .     .     .     31, 


O.C 


INDEX. 


675 


PRESUMPTIOXS,  —  Continued. 

disputable,  nature  and  principles  of 33 

of  innocence 34,  3o 

except  in  case  of  libel,  and  when    ...       30 

of  malice 18,  34 

of  lawfulness  of  acts 34 

from  possession *** 

guilty  possession 34 

destruction  of  evidence 37 

fabrication  of  evidence 37 

usual  course  of  business 38,  40 

non-pajTiient  twenty  years 39 

of  continuance ^1 

of  life,  not  after  seven  years'  absence,  &c 41 

of  continuance  of  pai-tnership,  once  prqved    ....       42 
of  opinions  and  state  of  mind     .     .42,  370 

of  capacity  and  discretion  in  children 367 

in  persons  deaf  and  dumb  .     3G6 

of  religious  belief  in  witnesses 370 

of  international  comity 43 

always  against  fraud 34,  35,  80 

of  fact,  nature  of 44 

belong  to  the  province  of  the  jury 44 

when  juries  advised  as  to,  by  the  court     ....      45-48 
PRIMARY, 

evidence  and  secondary,  what 84 

PRINCIPAL  DEBTOR, 

when  his  admissions  bind  the  surety 187 

PRINCIPAL  FELOX, 

accessory,  not  a  competent  witness  for 407 

PRINTED  PAPERS, 

all  originals ^^ 

PRISON  BOOKS,  (See  Public  Records  and  Documents.) 

when  and  for  what  purposes  admissible 493 

PRISONER  OF  WAR, 

mode  of  procm-ing  attendance  of,  as  a  witness 312 

PRISONERS, 

examination  of,  how  proved 520 

PRIVATE  RIGHTS, 

not  provable  by  reputation 137 

PRIVATE  WRITINGS, 

contemporaneous,  admissible  to  explain  each  other 283 

proof  of,  when  destroyed 558,  n. 

when  lost 557,  558 

wheu  fraudulently  withheld 558,  7i. 

when  lost,  diligent  search  required 558 

production  and  inspection  of,  how  obtained 559 

notice  to  produce 560 

when  not  necessary 561 

how  dii-ected  and  served 501,  502 


676  INDEX. 

PRIVATE    yVRlTmOS,  — Continued. 

■when  to  be  called  for 563 

alteration  in,  when  to  be  explained 504. 

alteration  in,  when  presumed  innocent 5()4 

to  be  tried  ultimately  by  the  jury      ......     5(i4 

a  deed  renders  it  void 5G5 

reasons  of  this  rule 565 

alteration  and  spoliation,  diiference  between 566 

by  insertion  of  words  supplied  by  law 567 

made  by  the    party,  immaterial  and  without  fraud, 

,.  does  not  avoid 568 

made  by  party  with  fraud,  avoids 568 

but  does  not  divest  estate 568 

alterations  made  by  party  defeats  estate  lying  in  grant    ....     568 

destroys  future  remedies 568 

made  between    two  parties  to  an  indenture,  but  not 

affecting  the  others 568 

proof  of,  must  be  by  subscribing  witnesses,  if  any     ....  272,  569 

unattested 569,  n. 

exceptions  to  this  rule :  — 

1.  deeds  over  thirty  years  old 570 

2.  deed  produced  by  adverse  party  claiming  under  it     .     .     .     571 

3.  witnesses  not  to  be  had 572 

4.  office  bonds 573 

subscribing  witness,  who  is 569 

diligent  search  for  witnesses  required 574 

secondary  proof ,  when  witness  not  to  be  had 84  n.,  575 

handwriting,  how  proved 272,  576 

personal  knowledge  of,  required 577 

exceptions  to  this  rule 272,  578 

comparison  of  handwriting,  by  what  other  papers 579-582 

PRIVIES, 

parties  and  strangers 523,  536 

who  are  privies 23,189,190,211 

PRIVILEGE  OF  WITNESS, 

from  arrest 316 

from  answering 451-460 

PRIVILEGED   COMMUNICATIOXS, 

to  conveyancer 241 

1.  made  to  legal  counsel ;  principle  of  exclusion 237 

who  are  included  in  the  rule,  as  counsel 239,  241 

not  of  counsel 239,  ??. 

nature  of  the  communication 210 

extends  to  papers  intrusted  with  counsel 210 

opinions  of  counsel 24.0  a 

not  to  transactions  in  which  the  counsel  was  also  party   .     .     .     242 
protection  remains  for  ever,  unless  waived  by  the  party  .     .     .     243 

limitations  of  the  rule 244,  245 

when  title-deeds  and  papers  of  one  not  a  party  may  be  called 
out  of  the  hands  of  his  agent 246 


INDEX.  677 

PRIVILEGED   COMMUNICATIOXS,  —  Continued. 

2.  made  to  clergA'men,  how  far  privileged 229,  247 

3.  made  to  medical  persons,  and  other  confidential  fiieuds  and 

agents,  not  privileged 248 

4.  arbitrators  not  bound  to  disclose  grounds  of  award     .     .  .     249 

5.  secrets  of  State 250,  2r)l 

6.  proceedings  of  grand  juroi's 252 

7.  between  husband  and  wife 254,  3o4 

mizE, 

foreign  sentence  of  condemnation  as ,     .     .     .     .     541 

PROBABILIXr, 

what 8 

PROBABLE   CAUSE, 

when  for  court,  when  for  jmy 49,  ;*. 

PROBATE   COURTS, 

decrees  of,  when  conclusive 518,  550 

PROBATE   OF   WILLS, 

effect  of 550 

PROCHEIN  AMY, 

admissions  by 179 

inadmissible  as  a  witness 347,  391 

PROCLAMATIONS, 

proof  of 6  a,  479 

admissibility  and  effect  of 491 

PRODUCTION   OF   AVRITIXGS, 

private,  how  obtained 559-503 

(>>e  Private  Writings.) 
PROFESSIONAL  COMMUNICATIONS, 

when  privileged 237-248 

admissible 352 

PROMISE, 

new,  by  partner  binding  copartner  ,     .     .     112  n.,  177,  189,  207,  527  a 
PROMISES   AND   THREATS, 

as  inducing  confession 220 

PROMISSORY  NOTE, 

parties  to,  when  competent  to  impeach  it 190,  383-385 

alterations  in 564  n.,  566,  568 

stolen,  holder  must  show  that  he  took  them  in  good  faith     .     .     .    81  a 
{See  Witnesses. ) 
PROOF, 

amount  required  in  civil  cases 13  a 

criminal  cases 13  a 

defined 1 

burden  of 74-81 

{See  Onus  Probandi.) 
PROPERTY, 

when  presumed  from  possession 34 

PROSECUTION, 

malicious,  defendant's  testimony  before  grand  jury 558 

judgment  of  acquittal,  in  actions  for 471,  558 


678  INDEX. 

PROSECUTOR, 

when  competent  as  a  witness 862 

PROVINCIALISMS, 

may  be  explained  by  experts 280 

PUBLIC  ACT, 

defined 5,  n. 

PUBLIC  AND  GENERAL  INTEREST,  (See  Hearsay.) 

defined 5,  n. 

PUBLIC   BOOKS, 

contents  provable  by  copy 91 

PUBLIC   MEETINGS, 

doings  of,  provable  by  parol 90 

PUBLIC   POLICY, 

evidence  excluded  from 236-251 

PUBLIC   RECORDS  AND   DOCUMENTS, 

inspection  of  records  of  superior  courts 471,  472 

inferior  courts 473 

corporation  books 474 

when  proved  by  parol    .     .     .     . 90 

inspection  of  records  of  books  of  public  offices 475,  476 

when  an  action  is  pending 477 

when  not 478 

proof  of  public  documents  not  judicial 479-491 

by  copy 91,  479-484 

acts  of  State 479 

statutes 480,481 

legislative  journals 482 

ofBcial  registers,  &c 483,  484 

official  registers,  &c.,  character  of  these  books     .     .     .     .485,496 

proper  repository 142,  485 

who  may  give  copies 485 

foreign  laws 486,  487,  488,  488  a 

laws  of  sister  States 489,490 

judicially  noticed  by  Federal  com-ts    .     .     400 

admissibility  and  effect  of  these  documents 491-498 

proclamations 491 

recitals  in  public  statutes 491 

legislative  resolutions 491 

journals 491 

diplomatic  cori-espondence 491 

foreign  declarations  of  war 491 

letters  of  public  agent  abroad 491 

colonial  governor 49 1 

government  gazette 492 

official  registers 493 

parish  registers 493 

navy  office  registers 493 

prison  calendars 493 

assessment  books 493 

municipal  coi"poration  books      ....     493 


INDEX. 


679 


PUBLIC   RECORDS   AND   DOCUMENTS,  — Continued. 

admissibility  and  oflacial  private  corporation  books 493 

registry  of  vessels 494 

log-book 495 

what  is  an  official  register     .     .   484,  495,  49G 
public  histories,  how  far  admitted      .     .     497 

official  certificates 498 

PUBLIC   RIGHTS, 

provable  by  reputation 128,  140 

PUBLIC  RUMOR, 

original  evidence •'■^^ 

PUBLICATION, 

of  libel  by  agent,  when  principal  liable  for 36,  234 

PUNISHMENT, 

endurance  of,  whether  it  restores  competency 378,  n. 


Q. 

QUAKERS, 

judicial  affirmation  by 371 

QUALIFICATION,  _^ 

by  degree,  when  proof  of  dispensed  with 195,  n. 

by  license,  must  be  shown  by  party  licensed 78,  79 

QUANTITY  AND  QUALITY, 

whether  material 61 

provable  by  opinion 440,  n. 

QUESTIONS,  LEADING, 

what  and  when  allowed 434,  435,  447 

mixed,  law  and  fact,  for  jury 49 

QUO  WARRANTO, 

judgment  of  ouster  in,  conclusive  against  sub-officers  under  the 

ousted  incumbent ^36 


R. 

RAPE, 

cross-examination  of  prosecutrix 458,  460  n. 

when  prosecutrix  may  be  supported  by  proof  of  her  statements  out 
of  court 469 

wife  competent  to  prove 343 

RATABLE  INHABITANTS, 

distinguished  from  rated 331,  n. 

RATED  INHABITANTS, 

admissions  by 175>  331 

RATIFICATION, 

by  estoppel 269 

REALTY, 

what  is • 271 

REASONABLE  TBIE, 

question  for  jury .  49,  r. 


680  rta)EX. 

REBUTTAL, 

evidence  in,  of  dying  declarations,  favored 156 

RECEIPT, 

effect  of,  as  an  admission 212 

when  it  may  be  contradicted  by  parol 305 

of  part  payment,  by  indorsement  on  the  secm-ity 121 ,  122 

when  admissible  as  evidence  of  payment 147,  'i. 

RECITAL, 

may  be  contradicted  by  parol 2S1,  Sul 

RECITALS, 

in  statutes,  effect  of 491 

in  deeds,  when  conclusive 23  n.,  24-26,  211 

when  evidence  of  pedigree 104 

RECOGNITION, 

family,  in  pedigi'ee 103,  104,  134 

of  new  and  independent  States 4 

RECOGNIZANCE, 

of  witness 313 

RECOLLECTION, 

refreshed  by  memoranda 93,  436  n. 

RECORD, 

what  is  matter  of  description  in 70 

lost,  how  proved 86  n.,  509 

not  provable  by  admission 86 

not  impeachable  by  parol 275,  n. 

written  in  pencil,  not  admissible 501 

nul  tiel,  how  tried 502 

extended  from  minutes  and  papers,  original 508,  n. 

RECORDS, 

of  inferior  courts,  what  are 513,  n. 

variance  in  the  proof  of,  when  pleaded 70 

public,  provable  by  copy 91 

inspection  of 471-478 

(See  Records  and  Judicial  Writings.) 
RECORDS  AND  JUDICIAL  WRITINGS, 

proof  of 501-521 

by  copies,  three  kinds  of 501 

by  exemplification,  and  what 501 

by  production  of  the  record 502 

when  obtained  by  certiorari     .     502 

by  copy  under  seal 503 

proof  of  records  of  sister  States  of  the  United  States     .     .     .  504-500 

by  office  copy 507 

examined  copy 508 

•when  lost 04  n.,  509 

proof  of  verdicts 510 

decrees  in  chanceiy 510,  511 

answers  in  chanceiy 512 

judgments  of  inferior  com-ts 513 

foreign  judgments 514 


INDEX.  681 

RECORDS   AXD  JUDICIAL   WRITINGS,  — Cojilmued. 

proof  of  foreign  documents 514  a 

inquisitions  post  mortem,  and  otlier  private  oflBces  .     .     .     515 

depositions  in  chancery 516 

depositions  taken  under  commission 517 

wills  and  testaments 518 

letters  of  administration 519 

examination  of  prisoners 520 

writs 521 

admissibility  and  effect  of  these  records 522-5r.G 

general  principles 522 

who  are  parties,  privies,  and  strangers 523,  536 

mutuality  required,  in  order  to  bind 524 

except  cases  in  rem 525 

cases  of  custom,  &c 520 

when  offered  for  collateral  purposes, 

527,  527  a 

or  as  solemn  admissions      ....  527  a 

conclusive  only  as  to  matters  dii-ectly  in  issue    .     .     .  52S,  534 

general  rule  as  stated  by  Lord  C.  .7.  De  Grey    ....     528 

applies  only  where  the  point  was  determined     ....     529 

to  decisions  upon  the  merits 530 

whether  conclusive  when  given  in  evidence  .     .     .    531,  531  a 
to  be  conclusive,  must  relate  to  the  same  property  or 

transaction 532 

effect  of    former    recovery  in    tort,   without    satisfac- 
tion     533 

sufficient,  if  the  point  was  essential  to  the  former  find- 
ing      534 

judgment  in  criminal  case,  why  not  admissible  in  a  civil 

action 537 

judgment,  for  what  purposes  always  admissible     .     .  538,  539 
foreign  judgments,  jurisdiction  of  com't  to  be  shown .     .     540 

in  rem,  conclusive 540,  542 

how  far  conclusive  as  to  incidental 

matters 543 

as  to  personal  status,  marriage  and 

divorce 544,  545 

executors  and  administrators  .     .     .     544 
decisions  of  highest  judicial  tribunal  of  foreign  country 

conclusive 546  b 

judgment    of    foreign    court     conclusive     inter    paries, 

when 546  r/ 

foreign  decrees  operating  in  rem 546  e 

effect  of  defendant  becoming  party  to  proceedings  .  .546/ 
requisites  to  a  plea  of  foreign  judgment  in  bar.  .  .  .546^ 
foreign  judgments  in  personam,  their  effect  ....  546-549 
judgments  of  sister  States  of  the  United  States  .  .  .  548 
citizenship  not  material,  as  to  the  effect  of  foreign 
judgments 549 


682  INDEX. 

RECORDS  AXD  JUDICIAL  ^YRlTmGS,  — Contmued. 
admissibility  and  efiect  — 

of  decrees  of  courts  of  probate  or  eccle- 
siastical courts 550 

of  chancery  decrees 551 

answers 551 

demurrers 551 

pleas 551 

of  depositions 552 

of  foreign  depositions 552 

of  verdicts  and  depositions  to  prove  matters  of 

reputation oo^ 

of  inquisitions 556 

of  mutuality,  as  to  depositions 553 

whetlier  cross-examination  is  essential  to  their  admissibility    .  553,  554 
RECOVERY, 

prior  in  tort  bars  assimipsit,  when 532 

REDUNDANCY, 

of  proof,  and  allegation  distinguishable 67 

what  is 58,  n. 

RE-EXA:iIINATION,  (See  Witnesses.) 

of  witnesses 467,408 

REGISTER, 

official,  nature  and  proof  of 483-485,  493,  496,  497 

parish * 493 

bishop's 474,484 

ship's 494 

foreign  chapel 493,  n. 

fleet 493,  n. 

proper  custody,  when 142,  485 

(See  Public  Records  and  Documents.) 
REGISTRY, 

of  vessels 494 

RELATIONSHIP, 

proved  by  common  repute 105,  n. 

of  declarant,  necessary  in  proof  of  pedigree,  when      .     .    103,  104,  134 
RELEASE, 

competency  of  witness  restored  by,  when 426,  430 

(-See  AViTNESSES.) 
RELEVANCY, 

of  evidence 49 

rules  as  to 50 

RELIGIOUS  BELIEF, 

defect  in,  how  pi'oved 370,  ii. 

RELIGIOUS  PRINCIPLE  AND  BELIEF, 

presumed 370 

■what  necessary  to  competency  of  witness 368-372 

(See  Witnesses'.) 
RENT, 

presumption  from  payment  of 38 


INDEX. 


68a 


REPLEA^X, 

sui-ety  in,  how  rendered  competent 392,  7j. 

REPLIES, 

of  persons  referred  to,  not  heaxsay 182 

REPUTATION, 

of  witnesses 101-,  461 

(See  Hkarsay.     Witnesses.) 

evidence  of,  when  proved  by  verdict 139 

proof  of  relationship,  death,  and  place  of  birth 104,  n. 

not  proof  of  concubinage 107,  n. 

proof  .of  marriage 107,  n. 

fact,  not  hearsay 101,101a 

proof  of ,  by  verdict  and  deposition 139,555 

of  party  or  place,  when  admissible 54,  n. 

as  to  pioperty,  when  admissible 101,  n. 

REPUTED  OWNERSHIP, 

original  evidence 101 

RES  GESTjE, 

what lOS,  109,  111,  114 

(See  Hearsay.) 
RESIGNATION, 

of  corporator  restores  competency 430 

RESOLUTIONS, 

legislative 479 

at  public  meetings  may  be  proved  by  parol 90 

RESULTING  TRUSTS, 

when  they  arise -66 

REVOCATION  OF  WILLS 273 

REWARD, 

title  to,  does  not  render  incompetent 412,  414 

RIGHT  TO  BEGIN 74-76 

RIGHTS  OF  COMMON, 

provable  by  reputation 129,  130 

ROGATORY  LETTERS, 

what 320 

RULES, 

six  practical,  concerning  evidence 584 

RULES  OF  EVIDENCE, 

same  in  civil  and  criminal  cases 6o 


s. 

SALE, 

by  administrator,  presumed  regular 20 

when  to  be  proved  only  by  writing 201,267 

(See  Writing.) 

SANITY, 

presumed -^ 

whether  letters  to  the  party  admissible  to  prove 101,  n. 

opinions  of  physicians  admissible  as  to 440 


684  INDEX. 

SCIENCE, 

processes  of,  and  art,  judicially  noticed Q  a,  n, 

SCIENTER, 

notoriety  as  proof  of 135  ■ 

SCRIVENER, 

•   communications  to,  whether  privileged 244 

SEALS, 

of  new  and  independent  power,  how  proved 4 

of  notaries,  judicially  noticed 5 

of  foreign  nations,  judicially  noticed 4 

of  admiralty  courts 5 

of  courts,  when  judicially  noticed 4-6,  503 

of  corporations,  whether  to  be  proved  after  thirty  years  ....     570 
(See  Public  Records  and  Documents.     Records  and 
Judicial  Writings.) 

SEARCH,  • 

for  private  wiitings  lost 558 

for  subscribing  witnesses 574 

(See  Private  Writings.) 

SECONDARY  EVIDENCE, 

and  primary,  what 84 

by  duplicate  and  counterpart 558 

whether  degrees  in 84  n.,  582 

when  admissible 84,  91-9G,  105,  509,  558,  500,  575 

SECRETARY  OF  STATE,  '"^^ 

when  his  certificate  admissible 479 

SECRETS  OF  STATE, 

privileged 250-252 

SECURITY, 

impeachment  of,  by  payee 383-385 

SEDUCTION, 

character  admissible  in  action  for 54 

particular  acts  of  unchastity  with  others 54 

SENTENCE, 

of  foreign  courts,  when  conclusive 543-547 

(See  Records  and  Judicial  Writings.) 

SERVANT,  (See  Witness.) 

when  competent  as  a  witness  for  master 416 

SERVICE, 

of  notice  to  quit,  proved  by  entry  by  deceased  attorney  .     .     .     .     116 
to  produce  papers 561 

SHERIFF, 

admissions  of  deputy,  evidence  against 180 

of  indemnifying  creditor  admissible 180 

SHIP, 

registry  of 494 

title  to  proof  by  ship's  register 494 

log-book,  what  and  when  evidence 495 

SHIPS, 

neutrality  of,  when  presumed 31 


INDEX. 


685 


SHIPS,  —  Continued. 

grand  bill  of  sale  requisite  on  sale  of 261 

SHOOTING,  MALICIOUS, 

wife  may  prove ^^'^ 

SHOP-BOOKS, 

when  and  how  far  admissible  in  evidence 117-119 

SIGNING  BY  TELEGRAPH, 

Statute  of  Frauds 208,  n. 

by  mark 272  n.,  57J /.. 

SIGNING  WILL, 

what  constitutes -'- 

SIGNS, 

evidence  of  feelings,  not  hearsay 102,  101  b 

SILENCE, 

admissions  by 197-19!> 

SLANDER, 

who  is  to  begin,  in  action  of '6 

SOLICITOR,      (.See  Attorney.     Piuvileged  Communicatioxs.) 
SPECIALTY, 

consideration  for,  presumed 19 

SPIES,  {See  Accomplices.) 

SPOLIATION, 

of  papers,  fraudulent,  effect  of '^1 

difference  between,  and  alteration 560,  508 

STAINIP,  ("See  Memorandum.) 436 

STATE,' 

unacknowledged,  existence  how  proved •       _■* 

secrets,  not  to  be  disclosed 250-2o2 

STATUTE, 

how  proved ^^^ 

STATUTE   OF  FRAUDS 202-274 

]-equires  writing,  to  convey  an  interest  in  lands 273 

to  make  a  surrender , -*^'^ 

to  prove  a  trust  of  lands -^^ 

collateral  promise 2b  < 

certain  sales  of  goods 20* 

devise  to  be  in  writing - '  - 

{See  Writings.) 
STATUTES, 

public,  proof  of 480 

of  sister  States 6  a,  489-491 

private 480 

{See  Public  Records  and  Documents.) 
STEAYARD,  {See  Hearsay.) 

entries  by 147,155 

STOCK, 

transfer  of,  proved  by  bank-books 484 

{See  Public  Records  and  Documents.      Corporations.) 
STOLEN   PROPERTY, 

possession  of,  evidence  of  theft 34,  35 


686  INDEX. 

STRANGER, 

right  of,  to  call  for  private  papers 246 

admissions  by,  when  admissible 181 

privies  and  parties 523,  536 

depositions  admissible  against 555 

SUBJECT-MATTER, 

of  contract,  parol  evidence  to  ascertain 286-288,  801 

SUBORNATION, 

an  admission  of  a  bad  cause 196,  n. 

SUBPCENA, 

to  procm-e  attendance  of  witnesses 309,  414,  558 

when  and  how  served 314,  315 

duces  tecum,  writ  of,  force  and  effect  of 538,  n. 

(See  WiTXESSES.) 

SUBSCRIBING  WITNESS Sin.,  572,  569  a,  575 

when  not  required 571,  572 

when  character  may  be  impeached 126,  n. 

proof  of  signature  of  one,  when  sufficient 575 

(See  Attestixg  Witness.     Private  Writings.) 
SUBSTANCE   OF   ISSUE, 

proof  of,  sufficient 56-73 

what  in  libels  and  written  instruments 58 

prescriptions 58,  71 

allegations  modo  et  forma 59 

under  a  videlicet 60 

of  time,  place,  &c 61,  62 

variance  in  proof  of 63,  64 

•what,  in  criminal  prosecutions 65 

actions  on  contract 66 

case  of  deeds 69 

records 70 

(See  Description.) 
SURETY, 

when  bound  by  admissions  of  principal 187 

how  rendered  a  competent  witness  for  principal 430 

in  replevin,  how  rendered  competent 392,  n. 

(See  Witnesses.) 
SURGEON, 

confidential  communications  to,  not  privileged 247,  248 

SURPLUSAGE, 

what 51 

SURRENDER, 

when  writing  necessary 265 

SURVEYS   and'  xMAl'S, 

ancient,  when  evidence 139,  145  n.,  189  n.,  484  n. 

SURVIVORSHIP, 

not  presumed,  when  both  perish  in  the  same  calamity     ...     29,  30 


INDEX.  687 


T. 

TAXES, 

ancient  books  of  assessors  prove  abatement  of  .     .  .     •    150,  n. 

TELEGRAM, 

which  original °*»  '*• 

not  privileged "^^i  "• 

instructions  by,  signing,  Statute  of  Frauds 2G8,  n. 

contract  by,  in  wi'itiug 284  a,  n. 

TEXANT, 

estopped  to  deny  title  of  landlord,  when 25 

TERM, 

satisfied,  presumed  to  be  surrendered 46 

TERMS  OF   ART, 

may  be  explained  by  experts 280 

TERRIER, 

■what,  and  when  admissible ' 484,  496 

TESTAMENTS   AND   WILLS, 

proof  of 518 

TESTIMONY, 

of  deceased,  sick,  absent,  or  insane  witness 163-160 

THREATS, 

inducing  confession 220 

TBIE, 

reasonable,  question  for  jury 49,  n. 

when  not  material 56,  61,  62 

TITLE, 

possession  as  evidence 34 

of  landlord,  tenant  cannot  deny 25 

not  conclusively  barred  by  lapse  of  time 45 

presumptions  for  quieting 46 

to  land,  acts  of  ownership  as  proof 53  a 

declarations  of  former  owner  as  to 189,  190 

not  transferred  by  judgment  in  ti'over  and  trespass     ....    533,  n. 

declarations  in  disparagement  of 109 

of  owners  as  affecting  titles 166 

TITLES   OF   SOVEREIGNS, 

judicially  noticed 4 

TOJklBSTONE, 

inscription  on,  provable  by  parol 94,  105 

TRANSFER, 

of  stock  proved  by  books  of  bank 484 

TREASON, 

what  amount  of  evidence  necessary  to  prove      ....    234,  255,  256 

wife  incompetent  to  prove,  against  husband 345 

confession  of  guilt  in,  its  effect 235 

proof  of  overt  acts  in 235 

TRESPASS, 

defendant  in,  when  admissible  for  co-defendant 357,  359 


688  INDEX. 

TRIAL, 

order  of  proof,  and  course  of 469  a 

when  put  off  on  account  of  absent  witnesses 320 

for  religious  instruction  of  witness 367 

(See  WiTXESSES.) 
TROVER, 

whether  barred  by  prior  judgmont  in  trespass 533 

{See  Records  and  Judicial  Writings.) 
TRUSTEE, 

when  competent  as  a  witness 333,  409 

presumed  to  convey  where  he  ought  to  convey 46 

TRUSTEE'S   TROOF, 

judgment  in,  effect  of 542 

TRUSTS, 

to  be  proved  by  writing 266 

except  residting  trusts 266 

resulting,  when  they  arise 266 

established  by  parol,  when 266,  n. 


U. 

UNCERTAINTY, 

what 298,  300 

UNDERSTANDING, 

not  presumed  in  persons  deaf  and  dumb 366 

UNDERTAKING, 

to  release,  its  effect  on  competency 420 

UNDERWRITER, 

party  to  a  consolidation  rule,  incompetent 395 

who  has  paid  loss,  to  be  repaid  on  plaintiff's  success,  incompe- 
tent     392 

opinions  of,  when  not  admissible 441 

UNITED   STATES, 

laws  of,  how  proved,  hiter  seae 489,  490 

judgments  of  courts  of 548 

(See  Public  Records  and  Documents.    Records  and  Judi- 
cial Proceedings.) 
USAGE, 

admissibility  and  effect  of,  to  effect  written  contracts ....  292-294 
(See  Parol  Evidence.) 


V. 

VAJ.UE, 

relevancy  of  evidence  of 52,  n. 

when  to  be  proved  as  laid 63 

how  to  be  alleged  in  criminal  cases 65,  n. 

entries  in  shop-books  jonwia /acte  evidence 118,  n. 

provable  by  opinion 410,  n. 


INDEX.  689 

VARIANCE, 

avoided  by  videlicet 60 

nature  of 63,  64-73 

in  crimiual  prosecutions 65 

iu  the  proof  of  a  contract 66 

consideration 68 

deeds 69 

when  literal  agi*eement  in  proof  not  necessary 69 

in  the  name  of  obligor 69,  n. 

records 70 

prescriptions 71,  72 

fatal  consequences  of,  how  avoided 73 

(See  Descriptiox.     Substance  of  the  Issue.) 

VERDICT, 

how  proved,  and  when  admissible 510 

inter  alios,  evidence  of  what 139,  538,  555 

separate,  when  allowed 858,  363 

restores  competency  when 355 

VERDICTS, 

and  depositions  to  prove  reputation 555 

courts  may  direct,  in  criminal  cases  for  the  government,  when       49,  n. 

VESSEL, 

registry  of 491 

VIDELICET, 

its  nature  and  office  , 60 

when  it  will  avoid  a  variance 60 

VOIR  DIRE, 

examination  on 95 

what 424 

(See  "Witnesses.) 

VOLUMINOUS, 

facts  and  accounts,  result  of,  provable  by  parol .     .     .93,  436  n.,  439  n. 


W. 
WAIVER, 

of  damages,  parol  evidence  of 304 

WAR, 

notoriety,  proof  of  existence  of 491,  n. 

articles  of,  how  proved 479 

WARRANTY, 

limited,  in  deed,  cannot  be  extended  by  parol 281,  n. 

WAY, 

judgment  for  non-  repair  of 534 

WIDOW, 

incompetent  to  testify  to  admissions  by  deceased  husband   .     .     .     337 
(See  Husband  and  Wife.    Privileged  Communications.) 
WIFE, 

may  prove  abduction 343 

letters  of  to  husband  admissible  in  action  of  crim.  con 102 

VOL.  I.  44 


t)90  INDEX. 

WIFE,  —  Continued. 

may  prove  mm.  cow 254  n.,  344 

malicious  shooting 343 

witness  against  husband  for  self-protection 343 

may  prove  rape 343 

WILL, 

how  to  be  executed 272 

parol  evidence  admissible  to  show,  to  take  effect  upon  a  contin- 
gency      289,  n. 

how  to  be  revoked 272 

cancellation  of,  what 273 

admissibility  of  parol  evidence  to  erplain,  &c 287-291 

{See  Parol  Evidknce.) 

Mr.  Wigram's  rules  of  interpretation  . 287,  n. 

general  conclusions 291,  n. 

proof  of 440,  518 

effect  of  the  probate  of 550 

alterations  in 564  n.,  566 

WITNESS, 

subscribing,  who  is 569 

particeps  criminis  admissible 379 

may  refresh  memoiy  by  memorandum 436-439 

WITNESSES, 

how  many  necessary  to  establish  treason 255,  256 

perjury 257-260 

to  overthrow  an  answer  in  chancery     .     .     .     260 

how  to  prociire  attendance  of 309-324 

by  subpoena 309 

subpoena  duces  tecum 309 

tender  of  fees 310,311 

not  in  criminal  cases    ....     311 

expert  entitled  to  pay 310,  n. 

habeas  corpus  ad  testificandum 312 

recognizance 313 

subpoena,  when  served 314 

how  served 315 

how  and  when  protected  from  arrest 316 

discharged  from  unlawful  arrest 318 

neglecting  or  refusing  to  appear,  how  compelled 319 

to  produce  papers 558,  n. 

when  summoned  to  two  places  on  the  same  day 319,  n. 

liable  to  action  for  non-attendance 319,  n. 

residing  abroad,  depositions  taken  under  letters  rogatory     .     .     .     320 

sick,  depositions  taken  by  commission,  when 320 

depositions  of,  when  and  how  taken 321-324 

in  perpeluam  rei  memoriam 324,  325 

competency  of 327-430 

interested,  now  generally  competent 386,  n. 

to  be  sworn.     Oath,  its  nature «...     328 

competency  of  parties 327,  330 


INDEX. 


691 


WITNESSES,  — Con/jnuerf.  ' 

competency  of  attorneys "       qoi 

Quasi  corporators ^^^ 

private  corporators ^^^-j  ^'^^ 

members  of  charitable  corporations 333 

husband  and  wife 334-336 

time  of  marriage  not  material    ....     336 
rule  operates  after  divorce  or  death  of  one,     337 

exception "^'^ 

rule  applies  only  to  legal  marriages      .     .     339 

how  affected  by  husband's  consent    .     340 

applies,  wherever  he  is  interested .     •     341 

competent  in  collateral  proceedmgs     .     .     342 

exceptions  in  favor  of  wife    ....  342-345 

rule  extends  to  cases  of  treason,  semb 34o 

346 

347 


dying  declarations 

parties  nominal,  when  incompetent 


when  competent    ......      329  n.,  348,  353,  558 

from  necessity 34S-3oO 

fi-om  public  policy 350 

answer  in  chancery  admissible 351 

oath  given  diverso  intuitu,  admissible      ....     352 

never  compellable  to  testify 353 

one  of  several  not  admissible  for  the  adverse  party, 

without  consent  of  aU 354 

when  admissible  for  the  others  in  general     .     355 

in  actions  ex  contractu _  3oo 

in  actions  ex  delicto 357-359 

made  party  by  mistake,  when  admissible     .     .     359 
defendant'in  ejectment,  when  admissible     .     .     360 

in  chanceiy,  when  examinable 361 

in  criminal  cases,  as  to  prosecutor 362 

defendants      ....     363 

judge,  when  incompetent 364 

juror  competent o^? 

as  to  competency  of  persons  deficient  in  understanding  .     .     .  36o-367 

persons  insane j ^*^'^ 

cause  and  permanency  immaterial 3(jd 

persons  deaf  and  dumb 366 

as  to  competency  of  children .•     •     *.    '     '     •     %*..„. 

persons  deficient  in  religious  principle     .     .  dbb-tJ/ 1 

general  doctrine 368 

degree  of  faith  required 369 

defect  of  faith  never  presumed _  370 

how  ascertained  and  proved '    '  "• 

,  "'J- 

how  sworn o_.^ 

infamy  of,  renders  incompetent ' " 

reason  of  the  rule ^'-^ 

what  crimes  render  infamous 

extent  of  the  disability 


373 
374 


692  IXDEX. 

WITNESSES,  —  Continued. 

infamy  of,  exceptions  to  this  rule  of  incompetency 374 

must  be  proved  by  record  of  the  judgment 375 

foreign  judgment  of  infamy  goes  only  to  the  credit    .     .     .     376 
disability  from  infamy  removed  by  reversal  of  judgment      .     .     .     377 

by  pardon 377,  378 

accomplices,  when  admissible 379 

their  testimony  needs  corroboration 380,  381 

unless  they  were  only  feigned  accomplices 382 

waive  privileges 451  n.,  454- 

party  to  negotiable  instrument,  when  incompetent  to  impeach  it  .  383- 

385 

interested  in  the  result,  generally  incompetent 386-430 

nature  of  the  intei'est,  direct  and  legal,  &c 386 

real 387 

not  honorary  obligation 388 

not  in  the  question  alone .......     389 

test  of  the  interest 390 

mode  of  proof 423 

magnitude  and  degree  of  interest 391 

nature  of  interest  illustrated 392 

interest  arising  from  liability  over 393 

in  what  cases 394-397 

agent  or  servant 394,  396 

co-contractor 395 

what  extent  of  liability  sufficient 396,  397 

implied  warranty  sufficient 398 

balanced  interest  does  not  disqualify   .     .     .    391,  399,  420 

parties  to  bills  and  notes 399 

probable  effect  of  testimony  does  not  disqualify     .     .     400 

liability  to  costs  disqualifies 401,  402 

title  to  restitution,  when  it  disqualifies 403 

interested  in  the  record,  what,  and  when  it  disqualifies  .     .       404,  405 

in  criminal  cases,  as  accessory 407 

conspirator,  &c 407 

nature  of  disqualifying  interest  further  explained  by  cases  to  which 

the  rule  does  not  apply 408-410 

exceptions  to  the  rule  that  interest  disqualifies 411-420 

1.  witness  entitled  to  reward,  or  rather  benefit,  on  convic- 

tion    412-414 

2.  party  whose  name  is  forged 414 

3.  rendered  competent  by  statute 329  n.,  415 

4.  admitted  from  public  convenience  and  necessity  in  case  of 

middle-men,  agents,  &c 416 

confined  to  ordinary  business  transactions 417 

5.  interest  subsequently  acquired 418 

6.  offering  to  release  his  interest 419 

7.  amply  secured  against  liability  over 420 

objection  of  incompetency,  when  to  be  taken 421,  422 

how,  if  subsequently  discovered 421 


INDEX. 


G93 


WIT'SESSES,  — Continued.  , 

objection  of  incompetency  arising  from  witness's  own  exammation  . 

may  be  removed  in  same  manner    .  42- 

from  interest,  how  proved    .     .     .  423,  424 

to  be  determined  by  the  court  alone    .     .     •  425 

examination  of,  on  the  voir  dire,  what *-* 

competency  of,  when  restored  by  a  release 4-_6 

by  whom  aiven 4l7 

when  not *~ 

delivery  of  release  to  the  witness  not  necessary      .  429 
when  restored  by  payment  of  money  ....  408,  430 

by  striliing  off  name 430 

by  substitution  of  another  surety      ....  430 

by  operation  of  banki-upt  laws,  &c 430 

by  transfer  of  stock 430 

by  other  modes 430 

bv  assis:nment  of  interest 408 

.     ..        f                                                                   ....  431-469 
examination  of 

regulated  by  discretion  of  judge 431 

may  be  examined  apart,  when 432 

direct  and  cross  examination,  what 433 

leading  questions,  what 434,  434  a 

when  permitted 435 

when  witness  may  refer  to  writings  to  assist  his 

memory 436,  43/ 

when  the  writing  must  have  been  made  ....     438 

if  witness  is  blind,  it  may  be  read  to  him     .     .     .     4o9 

must,  in  general,  depose  only  to  facts  personally 


known 


440 


when  opinions  admissible 440,  440  a 

when  not ;     •     441 

witness  not  to  be  impeached  by  party  calling  him  .     442 

examination  of,  exceptions  to  this  rule 443 

may  be  contradicted  as  to  a  particular  fact  .     .     .     443 
witness  sm-prising  the  party  calling  him  ....     444 

cross-examination,  when 44o 

value  and  object  of 446 

how  long  the  right  continues 447 

how  far  as  to  collateral  facts 448,  489 

to  collateral  fact,  answer  conclusive      ....    449 

as  to  feelings  of  hostility 450 

as  to  existing  relations  and  intimacy  with  the 

other  party 450 

respecting  writings 463-466 

in  chancery '_     ^^4 

whether  compellable  to  answer 451-460 

to  expose  him,  — 

1.  to  a  criminal  charge 451 

when  he  testifies  to  pai't  of  a 
transaction  without  claiming 
his  privilege 451  a 


694  INDEX. 

WITNESSES,  —  Continued. 

2.  to  pecuniary  loss 452 

3.  to  forfeiture  of  estate 453 

4.  to  disgrace 454,  455 

where  it  only  tends  to  disgrace  him      ....  456 

impertinent  questions  on  cross-examination  .     .  456  a 

where  it  shows  a  previous  conviction    ....  457 
to  questions  showing  disgrace,  but  not  affecting 

his  credit 458 

to   questions    showing   disgrace,   affecting    his 

credit 459 

when  a  question  may  be  asked  which  the  wit- 
ness is  not  bound  to  answer 4G0 

modes  of  impeaching  credit  of    ... 461-469 

1.  by  disproving  his  testimony 461 

2.  by  general  evidence  of  reputation 461 

extent  of  this  inquiry 461 

3.  by  proof  of  self-contradiction 462 

how  to  be  supported  in  such  case 469 

how  to  be  cross-examined   as  to   contents  of 

wi-itings 463-466 

re-examination  of 467,  468 

when  evidence  of  general  character  admissible  in  support  of    .     .  469 

order  of  proof,  and  course  of  trial 469  a 

deceased,  proof  of  former  testimony 163-167 

WORDS, 

of  contract,  how  to  be  understood 278 

evidence  to  explain 295 

WRIT, 

how  proved 521 

WRITING, 

when  requisite  as  evidence  of  title,  — 

on  sale  of  ships  (^See  Ships) 261 

by  the  Statute  of  Frauds 262 

to  convey  an  interest  in  lands 263 

to  make  a  surrender 265 

to  prove  a  trust  of  lands 266 

a  collateral  promise 267 

certain  sales  of  goods 267 

sufficient,  if  contract  is  made  out  from 

several  writings 268 

agent's  authority  need  not  be  in  writ- 
ing    299 

unless  to  make  a  deed  ....  269 

the    term    interest   in   land   expounded,  270, 

271 

devise  must  be  in  writing 272 

how  to  be  executed 272 

revoked 273 

to  bind  an  apprentice 274 

in  what  sense  the  words  of  a  wiitten  contract  are  to  be  taken  .     .  274 


INDEX.  695 

WRITING,  —  Continued. 

]3arol  evidence  to  reform 296  a 

how  used  in  cross-examination 465 

•when  parol  evidence  is  admissible  to  explain,  &c. 

(^See  Parol  Evidexck.) 
public, 
(See  Public  Documents.    Records  and  Judicial  Writings.) 

written  evidence,  different  kinds  of 370 

private,  explained  by  contemporaneous  writing 283 

how  proved  when  subscribing  witness  not  to  be  had    .      84  n.,  572,  575 


2  2  ?  S.  ?,  II.  '^  £ 

E^r i den c  e  -  Mo n  ^'^i  1 1  ar d  H .  I IcS-./erj ,- . 

I'^n  true  tor. 
Textbook:"  Oreenleaf  on  Evidence.- 

Sect: on  I. 


19II, 
Sept. 


Sections. 


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2912* 
J'-xn . 


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LAW  LIBRARY 

UNIVERSITY  OF  GALIFORNIS 

LOS  ANGELES 


.  .  t  ,  .  . 
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1 

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to 
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50'  to  52' 

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^45  to  S'io 

368  to  398 

39G  to  431 

431  ■'■0  451 

451  to  499 

499  to  525 

523,  to  end 
Examination. 


Chicago-Kent  College 
of  Law. 

LAW    DEPARTMENT 

OF 

LAKE    FOREST    UNIVERSITY. 


SECO]NI>    YEAR     CLASS 

EVIDENCE 

Thomas  E.  D.  Bradley,  Instractor 
Text-Book— 1   Vol.  Greenh-of  on  Evidence. 


1902. 
January     9 Sections  275-305 

16 "  127-235     (Written) 

23 "  306-340 

30 "  341-402 

February   6 "  236-305     (Written) 

13 ' "  403-444 

20 "  445-489 

27 "  306-430     (Written) 

March     6 "  490-547 

13 '•  548-584 

20 "  431-584     (Written) 

27 Final  Examination. 


-^    ^  J  ^  ^    yt     ^        i       .  ^^  Jj'*      y»     ^       ^       ^        .' 


Secretary, 


